Reid v. Anderson

Court of Appeals of Georgia

Reid v. Anderson

76 S.E.2d 541, 88 Ga. App. 298, 1953 Ga. App. LEXIS 1068

CourtCourt of Appeals of Georgia

DecidedMay 27, 1953

Docket34502

StatusPublished

Cited by1 cases

This text of 76 S.E.2d 541 (Reid v. Anderson) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Reid v. Anderson, 76 S.E.2d 541, 88 Ga. App. 298, 1953 Ga. App. LEXIS 1068 (Ga. Ct. App. 1953).

Pincite

Opinions

Worrill, J.

Paul H. Anderson, obtained a judgment by default against Charlie Reid in the Municipal Court of Augusta on October 27, 1951. A fi. fa. issued and was levied on certain property of the defendant on March 21, 1952. To that levy Reid filed an affidavit of illegality, which was later voluntarily dismissed by the defendant. Thereafter, and on June 17, 1952, the defendant presented to the trial judge and had signed by him a rule nisi on a motion to set aside the judgment. The pleading was denominated a motion, styled like the main case, the judgment in which it was sought to have set aside, bore the same docket number, and as grounds therefor set forth that, while the record in the case [299]*299showed that the defendant was served, the defendant, in fact, was not served, did not waive service, and never voluntarily appeared, or filed plea and answer, and had no knowledge of the proceeding against him. The plaintiff filed general and special demurrers to the motion which the trial court sustained and entered an order dismissing the motion. The exception here is to that judgment. Held:

Decided May 27, 1953. Nicholson & Fleming, for plaintiff in error. Heard Robertson, Bussey & Hardin, contra.

A motion to set aside a judgment made after the term at which it was rendered must be based on some defect appearing on the face of the record. Regopoulas v. State, 116 Ga. 596 (1) (42 S. E. 1014); Jackson v. Jackson, 199 Ga. 716 (2), 720 (35 S. E. 2d 258). The motion here clearly does not seek to set the judgment aside for any defect appearing on the face of the record, but for a fact extraneous of the record (namely, the lack of the service shown by the record), which it would be necessary for the defendant to prove by aliunde evidence in order to prevail in the motion. The motion was not made at the term at which the judgment sought to be set aside was rendered, but was made on June 17, 1952, which was during the May, 1952, term of the court and some seven terms after the October, 1951, term, at which the judgment was rendered. Ga. L. 1951, pp. 3345, 3353. Eor this reason at least, the trial court did not err in sustaining the general demurrers and in dismissing the motion to set aside the judgment.

Judgment affirmed.

Sutton, C. J., concurs, and Felton, J., concurs specially.

Free access — add to your briefcase to read the full text and ask questions with AI

Worrill, J.

Paul H. Anderson, obtained a judgment by default against Charlie Reid in the Municipal Court of Augusta on October 27, 1951. A fi. fa. issued and was levied on certain property of the defendant on March 21, 1952. To that levy Reid filed an affidavit of illegality, which was later voluntarily dismissed by the defendant. Thereafter, and on June 17, 1952, the defendant presented to the trial judge and had signed by him a rule nisi on a motion to set aside the judgment. The pleading was denominated a motion, styled like the main case, the judgment in which it was sought to have set aside, bore the same docket number, and as grounds therefor set forth that, while the record in the case [299]*299showed that the defendant was served, the defendant, in fact, was not served, did not waive service, and never voluntarily appeared, or filed plea and answer, and had no knowledge of the proceeding against him. The plaintiff filed general and special demurrers to the motion which the trial court sustained and entered an order dismissing the motion. The exception here is to that judgment. Held:

Decided May 27, 1953. Nicholson & Fleming, for plaintiff in error. Heard Robertson, Bussey & Hardin, contra.

A motion to set aside a judgment made after the term at which it was rendered must be based on some defect appearing on the face of the record. Regopoulas v. State, 116 Ga. 596 (1) (42 S. E. 1014); Jackson v. Jackson, 199 Ga. 716 (2), 720 (35 S. E. 2d 258). The motion here clearly does not seek to set the judgment aside for any defect appearing on the face of the record, but for a fact extraneous of the record (namely, the lack of the service shown by the record), which it would be necessary for the defendant to prove by aliunde evidence in order to prevail in the motion. The motion was not made at the term at which the judgment sought to be set aside was rendered, but was made on June 17, 1952, which was during the May, 1952, term of the court and some seven terms after the October, 1951, term, at which the judgment was rendered. Ga. L. 1951, pp. 3345, 3353. Eor this reason at least, the trial court did not err in sustaining the general demurrers and in dismissing the motion to set aside the judgment.

Judgment affirmed.

Sutton, C. J., concurs, and Felton, J., concurs specially.

Cite This Page — Counsel Stack

Bluebook (online)

76 S.E.2d 541, 88 Ga. App. 298, 1953 Ga. App. LEXIS 1068, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reid-v-anderson-gactapp-1953.

Opinions

Related

Cite This Page — Counsel Stack