Sixth Street Corp. v. City Stores Co.

Supreme Court of Georgia

Sixth Street Corp. v. City Stores Co.

189 S.E.2d 407, 229 Ga. 99, 1972 Ga. LEXIS 511

CourtSupreme Court of Georgia

DecidedApril 20, 1972

Docket27041

StatusPublished

Cited by5 cases

This text of 189 S.E.2d 407 (Sixth Street Corp. v. City Stores Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Sixth Street Corp. v. City Stores Co., 189 S.E.2d 407, 229 Ga. 99, 1972 Ga. LEXIS 511 (Ga. 1972).

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Opinions

Hawes, Justice.

Sixth Street Corporation sued City Stores Company in the Superior Court of Fulton County to set aside and enjoin the enforcement of a judgment rendered against it as garnishee in the Civil Court of Fulton County. The trial court sustained the defendant’s motion to dismiss on the ground that the plaintiff had an adequate remedy at law in its right to sue the Marshal and Deputy Marshal of the Civil Court of Fulton County on their bonds for making an allegedly false return of service. Plaintiff appealed from that judgment. Paragraph 2 of the complaint alleges: "Plaintiff was the garnishee in Civil Action No. 156981 in the Civil Court of Fulton County, Georgia, styled: City Stores Company d/b/a Franklin Simon, plaintiff, vs. Johnny Ogletree, Sixth Street Corporation d/b/a Peachtree Manor, Garnishee. Said suit shows purported service by Deputy Marshal W. F. Edmonds on Mrs. Dunbar on April 25, 1966. However, the said Mrs. Dunbar was never served and the court obtained no jurisdiction over this defendant because of [100]*100insufficiency of service of process, and Sixth Street Corporation has never been legally served in said suit.” Under the Civil Practice Act, a motion to dismiss on the ground that the complaint fails to state a claim upon which relief can be granted ought not to be sustained unless it can be said that under no conceivable state of facts which the plaintiff might prove under the allegations of the complaint would he be entitled to any relief. Harper v. DeFrietas, 117 Ga. App. 236 (1) (160 SE2d 260); Ghitter v. Edge, 118 Ga. App. 750 (165 SE2d 598); Ansley v. Moss, 121 Ga. App. 43 (172 SE2d 654). Plaintiff alleged that it had no adequate remedy at law. No motion for a more definite statement (Code Ann. §81A-112 (e)) was filed and it cannot be said that under all conceivable circumstances a suit on the bonds of the marshal and the deputy marshal would afford the plaintiff as full, complete and adequate relief as would a decree setting aside the judgment in the garnishment case. If the plaintiff here was in fact not served in the garnishment proceeding, the judgment against it was utterly void as it never became a party thereto. A complaint in equity is an available remedy to set aside a judgment rendered against the complainant by reason of fraud, accident or mistake or the acts of the adverse party unmixed with the negligence or fault of the complainant. Termplan, Inc. v. Miller, 228 Ga. 428 (186 SE2d 102); Code Ann. § 81A-160 (e). Cf. former Code §§ 37-219 and 110-710, and see McKnight v. Wilson, 158 Ga. 153 (3) (122 SE 702). If it should appear upon the trial of' the case that the judgment against the plaintiff is grossly in excess of the amount of the bonds of the officers responsible for the false entry of service, it would seem to be plain that a suit on their bonds would not afford the plaintiff as complete and adequate a remedy as would a decree setting aside the judgment. It follows that the judgment appealed from was erroneous and must be reversed.

Judgment reversed.

All the Justices concur, except Gunter, J., who dissents. [101]*101Argued February 15, 1972 Decided April 20, 1972 Rehearing denied May 3, 1972. Arnall, Golden & Gregory, H. Fred Gober, for appellant. Morris Brown, for appellee.

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Hawes, Justice.

Sixth Street Corporation sued City Stores Company in the Superior Court of Fulton County to set aside and enjoin the enforcement of a judgment rendered against it as garnishee in the Civil Court of Fulton County. The trial court sustained the defendant’s motion to dismiss on the ground that the plaintiff had an adequate remedy at law in its right to sue the Marshal and Deputy Marshal of the Civil Court of Fulton County on their bonds for making an allegedly false return of service. Plaintiff appealed from that judgment. Paragraph 2 of the complaint alleges: "Plaintiff was the garnishee in Civil Action No. 156981 in the Civil Court of Fulton County, Georgia, styled: City Stores Company d/b/a Franklin Simon, plaintiff, vs. Johnny Ogletree, Sixth Street Corporation d/b/a Peachtree Manor, Garnishee. Said suit shows purported service by Deputy Marshal W. F. Edmonds on Mrs. Dunbar on April 25, 1966. However, the said Mrs. Dunbar was never served and the court obtained no jurisdiction over this defendant because of [100]*100insufficiency of service of process, and Sixth Street Corporation has never been legally served in said suit.” Under the Civil Practice Act, a motion to dismiss on the ground that the complaint fails to state a claim upon which relief can be granted ought not to be sustained unless it can be said that under no conceivable state of facts which the plaintiff might prove under the allegations of the complaint would he be entitled to any relief. Harper v. DeFrietas, 117 Ga. App. 236 (1) (160 SE2d 260); Ghitter v. Edge, 118 Ga. App. 750 (165 SE2d 598); Ansley v. Moss, 121 Ga. App. 43 (172 SE2d 654). Plaintiff alleged that it had no adequate remedy at law. No motion for a more definite statement (Code Ann. §81A-112 (e)) was filed and it cannot be said that under all conceivable circumstances a suit on the bonds of the marshal and the deputy marshal would afford the plaintiff as full, complete and adequate relief as would a decree setting aside the judgment in the garnishment case. If the plaintiff here was in fact not served in the garnishment proceeding, the judgment against it was utterly void as it never became a party thereto. A complaint in equity is an available remedy to set aside a judgment rendered against the complainant by reason of fraud, accident or mistake or the acts of the adverse party unmixed with the negligence or fault of the complainant. Termplan, Inc. v. Miller, 228 Ga. 428 (186 SE2d 102); Code Ann. § 81A-160 (e). Cf. former Code §§ 37-219 and 110-710, and see McKnight v. Wilson, 158 Ga. 153 (3) (122 SE 702). If it should appear upon the trial of' the case that the judgment against the plaintiff is grossly in excess of the amount of the bonds of the officers responsible for the false entry of service, it would seem to be plain that a suit on their bonds would not afford the plaintiff as complete and adequate a remedy as would a decree setting aside the judgment. It follows that the judgment appealed from was erroneous and must be reversed.

Judgment reversed.

All the Justices concur, except Gunter, J., who dissents. [101]*101Argued February 15, 1972 Decided April 20, 1972 Rehearing denied May 3, 1972. Arnall, Golden & Gregory, H. Fred Gober, for appellant. Morris Brown, for appellee.

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189 S.E.2d 407, 229 Ga. 99, 1972 Ga. LEXIS 511, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sixth-street-corp-v-city-stores-co-ga-1972.

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