Haraszti v. Feathers

233 S.E.2d 242, 141 Ga. App. 253, 1977 Ga. App. LEXIS 1856

• Court: Court of Appeals of Georgia
• Decided: February 9, 1977
• Docket: 53239
• Status: Published

Opinion

Stolz, Judge.

On May 13, 1975, the appellees filed an action against the appellant in the State Court of Clayton County. Summary judgment was granted in the appellant’s favor on November 6, 1975. On February 9, 1976, a motion to set aside' that judgment was filed, alleging fraud and lack of notice. The motion was granted by the trial court on May 6, 1976. The appellant, on interlocutory appeal, challenges the order below setting aside the November 1975 summary judgment.

1. " 'The general principle obtains that a court cannot set aside or alter its final judgment after the expiration of the term at which it was entered, unless the proceeding for that purpose was begun during the term.’ Miraglia v. Bryson, 152 Ga. 828 (2) (111 SE 655) (1922) and cits.; Pekor v. Clark, 236 Ga. 457(1) (224 SE2d 30) (1976).” Story v. Gwinnett Bank &c. Co., 140 Ga. App. 533 (1976).

We take judicial notice that the order of summary judgment was granted and filed during the October 1975 term of the State Court of Clayton County. The appellees’ motion to set aside was not filed until the February 1976 term. See Ga. L. 1963, p. 3620.

Argued January 11, 1977 Decided February 9, 1977. Webb, Parker, Young & Ferguson, David E. Betts, for appellant. William A. Wehunt, for appellees.

The grant of summary judgment was not appealed from and was not the subject of a motion to set aside made within the term at which it was entered. Thus, the trial judge committed error in granting the appellees’ motion to set aside made after term. All further proceedings in the trial court were, therefore, a nullity.

2. The appellees’ motion to dismiss this appeal is without merit and denied.

Judgment reversed.

Quillian, P. J., andShulman, J., concur.