Southern Railway Co. v. Daniels

29 S.E. 761, 103 Ga. 541, 1897 Ga. LEXIS 399

Opinion

Lumpkin, P. J.

A defendant against whom a judgment was rendered after he had been duly served has, in legal contemplation, “had his day in court, ’ ’ and ‘1 can not go behind the judgment by an affidavit of illegality. ’ ’ If the judgment was rendered in a justice’s court and the defendant was,, by the plaintiff’s fraud unmixed with negligence on the defendant’s part,, deprived of a hearing, atíd after the discovery of the fraud no remedy other than a resort to equity was available, a petition to set aside the-judgment would lie. Civil Code, <5 4742. And see Brewer v. Jones, 44 Ga. 71; Hood v. Parker, 63 Ga. 510; Tumlin v. O’Bryan, 68 Ga. 65, 66.

Judgment affirmed.

All the Justices concurring.

Counsel for the plaintiff moved to dismiss the affidavit of illegality, upon the ground that the court had no right to go behind the judgment and entertain the same. The magistrate sustained the motion. Defendant carried the case to the superior court by certiorari. The judgment of the magistrate was affirmed, and defendant excepted.

DeLaey & Bishop, for plaintiff in error.