Collier v. Hirsch

131 S.E.2d 105, 218 Ga. 854, 1963 Ga. LEXIS 348

• Court: Supreme Court of Georgia
• Decided: April 4, 1963
• Docket: 21878
• Status: Published

Opinions

Mobley, Justice.

This case is here by virtue of the grant of a petition for the writ of certiorari to review the judgment of the Court of Appeals in Collier v. Hirsch, 106 Ga. App. 652 (127 SE2d 859), which was the second appearance of the case originally before that court in Hirsch v. Collier, 104 Ga. App. 271 (121 SE2d 318). Reference may be made to the reports of those two decisions for a full understanding of the case.

In Hirsch v. Collier, 104 Ga. App. 271, 275, supra, the Court of Appeals held that the motion to set aside the judgment on the ground of fraud did not set forth a cause of action because there was “no allegation of any act by the plaintiff before the judgment was rendered upon whioh the defendant reasonably could have placed confidence or been assured that plaintiff would not take a judgment against him, or that prevented the defendant from appearing to defend the suit.” The original motion, ruled upon in that appearance of the case, alleged that the plaintiff received the check on December 26, 1960, accepted it, retained it in his possession, and later cashed it. In his amendment to the motion, defendant alleged that at the time the plaintiff received and accepted the check he intended to retain the check for the purpose of reducing it to cash at a later date and that he did retain it until he cashed it at a later date. He also alleges by way of amendment that “as a result of the making of said accord and satisfaction on December 26, 1960, by the receipt and acceptance of said check on December 26, 1960, with said endorsement thereon, the plaintiff agreed to dismiss this suit in this court and not to permit a default judgment to be taken thereon.” The Court of Appeals held in the decision now under review, Collier v. Hirsch, 106 Ga. App. 652, 653, supra, that “the only factual allegation added by the amendment is that when plaintiff received the check on December 26, 1960, he intended to retain and cash it ... In the amendment there is still 'no allegation of any act by the plaintiff before the judgment was rendered upon which the defendant reasonably could have placed confidence or been assured that plaintiff would not take a judgment against him, or that prevented the defendant from appearing to defend the suit.’ . . . Since this essential element is still missing in the amended motion, it is the law of this case that the motion cannot withstand the general demurrer.”

We agree with the Court of Appeals that the first-mentioned allegation in the amended motion is the only factual allegation added by way of amendment, for the second-mentioned allegation is most assuredly nothing more than a conclusion of law and is not an allegation of ultimate facts. We further agree that this factual allegation does not supply the element missing in the original motion and it is therefore the law of the case that the motion cannot withstand the general demurrer lodged against it.

Argued January 16, 1963 Decided April 4, 1963 Rehearing denied May 13, 1963. Houston White, for plaintiff in error. Almon, Clein A Bay, contra.

Judgment affirmed.

All the Justices concur, except Duckworth, C. J., and Candler, J., who dissent.