Milam v. Busey Et Al., 96 Ga. App. 88, 99 S.E.2d 325 (1957)
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Wright, Rogers, Magruder & Hoyt, Clinton J. Morgan, contra.Scoggin & Martin, for plaintiff in error.
To have a judgment set aside, a plaintiff must have a good defense of which he was entirely ignorant, or he must be prevented from making the defense because of fraud or accident, or the act of the adverse party, unmixed with fraud or negligence on his own part. The allegation that the plaintiff had no notice that lie was being sued is not sufficient ground to set aside the judgment, the opposite party having complied with the law as to service.
Loyd D. Milam brought suit against three defendants: Dorothy R. Busey, Joe Adams, sheriff, and Alton White, deputy sheriff. Paragraph 1 of the petition names the defendants and alleges jurisdiction.
Paragraph 2 alleges that Dorothy R. Busey filed a suit for damages against the plaintiff. Paragraph 3 alleges no proper service and entry of service. Paragraph 4 alleges that one of the defendants, Mrs. Dorothy R. Busey, took judgment by default. Paragraph 5 alleges that the plaintiff was served with a notice of levy on his lands to satisfy the default judgment. Paragraph 6 alleges that the plaintiff had no notice or demand against him by Mrs. Busey or her counsel; that the plaintiff never received any copy of a suit, no notice that any proceedings were pending against him and no notice that any judgment had been rendered against him until he was personally served with a notice of the levy. Paragraph 7 alleges that the plaintiff has a meritorious defense against the suit and seeks an opportunity to have his day in court which he claims he was deprived of because of lack of notice of the suit brought against him. Paragraph 8 alleges that the suit was brought within the statutory time. Paragraph 9 alleges that the judgment obtained by Mrs. Busey should be set aside so as to allow the plaintiff to file defensive pleadings to the damage suit.
Petitioner prayed as follows: (a) Defendants to appear to answer the complaint; (b) that a rule nisi issue requiring the defendants to show cause why the proceedings to levy should not be enjoined; (c) that the proceedings to levy be promptly enjoined and that the judgment against the plaintiff be set aside and vacated; (d) that the plaintiff be allowed to file defensive pleadings instanter in the case brought against him by Mrs. Busey.
Mrs. Busey filed a general demurrer to the petition, which was sustained by the trial court. It is on this judgment that the case is here for review.
E. 2d 649), Tyler v. Eubanks, 207 Ga. 46 (60 S. E. 2d 130), and Bandy v. Smith, 211 Ga. 192 (84 S. E. 2d 449). In Deen v. Baxley State Bank, 210 Ga. 795 (82 S. E. 2d 831). The only allegation of the plaintiff in the instant case is that he had no notice of the suit against him. This court has already decided that the plaintiff was properly served. See Busey v. Milam,
The court did not err in sustaining the demurrer and in dismissing the petition.
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This document cites
- Supreme Court of Georgia - BANDY et al. v. SMITH, next friend, et al., 211 Ga. 192, 84 S.E.2.d 449 (1954)
- Supreme Court of Georgia - JOHNSON et al. v. JOHNSON., 210 Ga. 795, 82 S.E.2.d 831 (1954)
- Supreme Court of Georgia - TYLER v. EUBANKS., 207 Ga. 46, 60 S.E.2.d 130 (1950)
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