1. Under the law as applied to the facts, it was proper to dismiss, on general demurrer, the petition to vacate and set aside a verdict and decree.
(a) Acts or conduct which are claimed to be wrongful, but upon which the opposite party did not rely or act to his injury, are not such as will authorize a court of equity to vacate and set aside a verdict and decree based thereon.
(b) A decree will not be vacated and set aside although obtained and entered up in consequence of perjury, unless the party giving such testimony shall have been duly convicted thereof, and unless it shall appear that such decree could not have been obtained and entered up without the evidence of such perjured person.
(c) Fraud or such other conduct as will justify a court of equity in vacating and setting aside a decree must have been perpetrated by the opposite party, his counsel or agent.
2. A decree by a court of competent jurisdiction is conclusive between the same parties and their privies, as to all matters which are put in issue, or which under the rules of law might have been put in issue in the cause wherein the decree was rendered, until such decree shall be reversed or set aside. That a verdict is contrary to law and to the issues made by the pleadings is a question which should be raised by motion for new trial; and under the doctrine of res judicata, a decree becomes conclusive upon failure so to do. A petition subsequently brought to review and set aside the verdict on which the decree was obtained is properly dismissed on general demurrer, where it appears that the grounds for review are such as were known, or could by reasonable diligence have been discovered in time to have been incorporated in a motion for new trial.
3. It is not erroneous to sustain a general demurrer to a petition to set aside a decree because it does not follow the verdict. A decree which fails to follow the verdict is not for that reason void, but irregular, and may be amended on motion, and being amendable should not be set aside.
No. 15474. JUNE 4, 1946. Owen Hubbard, Annie Allen, and Almeda Tatum brought an equitable action against Sallie Whatley, formerly Sallie Hubbard, *Page 752 to vacate and set aside a verdict and decree rendered in Fulton County Superior Court. The petitioner, after being amended, alleged: The plaintiffs are brother and sisters and the defendant is the divorced wife of the plaintiff Hubbard. Since the granting of a total divorce the defendant has remarried. Some time during 1926, the plaintiff Hubbard borrowed from the other two named plaintiffs the sum of $900, and secured its repayment by a first lien on his home at No. 51 Booker Street in the City of Atlanta, which loan as to neither principal nor interest has been paid. The plaintiff Hubbard and the defendant were married on April 12, 1934. He was then about 62, able-bodied, worked, earned money, and owned property. The defendant was about 50 years old, and assured him that she would be a faithful wife. During February, 1935, the plaintiff Hubbard was stricken with some unknown disease which affected his entire body, physically and mentally, and to such an extent that he became irrational and not able to realize the true nature of things or fully and reasonably understand his acts — "his mind was in a daze; however, he could see objects, hear sounds, but could not distinguish the same so as to be reasonable and rational for his own interest." While in this condition the defendant caused two negro men to enter his home at night and the three, on assurances that the defendant would live with him, care for him, love him, and always be a faithful wife, induced him to sign a deed in blank, which was afterwards completed so as to have it convey to the defendant an undivided half of his home at 51 Booker Street in the City of Atlanta. The deed was promptly recorded in Fulton County. The recited consideration was "love and affection;" but the consideration has failed, since "she had none whatever." By "late spring or early summer," 1935, he had so recovered from his illness that he was able against to work and earn money. The defendant became indifferent, ignored him, refused to cook his meals and care for the home, continuously "nagged" him, and finally in 1938 abandoned him by selecting her a room in their house, which she moved into and "locked" him out. In 1940 Annie Allen came to the home to live with and care for her brother, and the defendant objected to this. On July 10, 1941, the defendant here filed a suit for divorce against the plaintiff Hubbard in the Superior Court of Fulton County. No copy of that suit was attached to the present one but the petition here *Page 753 stated: "she filed a suit for divorce . . wherein appears much record, consisting of pleadings, orders of the court, verdicts and judgments, all of which are made a part of this petition, and offered as evidence herein, the same to be more particularly referred to hereinafter, the action being numbered 134,973 of record in this court." From the two verdicts rendered, the final decree, copies of which are set out in the petition here, and from the general allegations made, it may be assumed as follows: That such case was an action for total divorce and alimony against Owen Hubbard and an injunction against Annie Allen; and that the defendant Hubbard in that case by his answer prayed for the cancellation of the deed which he had previously made to his wife, the plaintiff in that case. The plaintiffs conceded that the two verdicts for divorce between the parties were valid, and that the decree, in so far as it related to a dissolution of the marriage contract between the parties, should be upheld, but all other part or parts of the verdict and judgment "should be vacated and set aside [and] rendered void." The plaintiff Hubbard, at the time of the trial of that case, was 70 years of age, and had not recovered from a previous stroke of paralysis, which affected both his mind and body, making him irrational and rendering him unable to exercise the reasoning power of a normal person. At the time of the trial, he was "ignorant of law" and knew nothing of his rights in court procedure. He was restrained from making his defense and from relating facts to the court and jury which were material, because his counsel "scolded" him at a time during the trial when he wanted to testify, and he was thereby prevented from giving his testimony and did not know that he had a right to appeal to the court to enforce his rights. Had he been permitted to testify, the jury would not have granted alimony. During the pendency of that case, he and his estranged wife occupied the same house, but different rooms. She would not give him any final answer about reconciliation during the entire progress of the suit, "but lured him into the belief that she might agree in a recohabitation," and for that reason he did not urge any defense until the final trial. The testimony given by his wife on the trial of the divorce case was untrue and "deceived and misled the court," and was "fraud committed on the court." She testified that he was at the time of trial only 62, when she knew that he was 70, and that he was *Page 754 strong and well and able to work, which she knew was false. On the trial, the jury rendered a second verdict in the usual form, and in it fixed the rights and liabilities of the parties by providing that each might contract marriage anew. With respect to alimony and the cancellation of the deed, the jury found: "We further find that: In lieu of alimony, it is decided that the deed to No. 51 Booker Street to 1/2 interest to Sallie M. Hubbard, as claimed by the plaintiff, be acknowledged as authentic, which will leave the title of the property jointly in the names of Sallie Maud [and ?] Owen Hubbard, with the further stipulation that upon the death of either party his or her interest shall go to the survivor. The cost of taxes, insurance, repairs, etc., of the property shall be shared equally by the joint owners. Further that Annie Allen shall be restrained permanently from entering the premises." The jury did not award alimony, but found that the deed sought to be canceled should be "acknowledged and authenticated." After this finding by the jury, which was not for alimony, it conditioned a future disposition of the plaintiff Hubbard's property, which neither the pleadings nor the law authorized. For this reason, and the fraud alleged in the petition, the verdict should be set aside as it related to property, but not as to the divorce or in the discretion of the court as to all. Based on the final verdict, a decree was entered, but not in accordance therewith, the decree being: "Two concurring verdicts favoring a total divorce to plaintiff having been rendered in the foregoing case, it is considered, ordered, and adjudged that said marriage be and the same is hereby annulled and a total divorce granted between the parties with liberty to the plaintiff to marry again. The defendant shall be at liberty to marry again.
"It is further ordered and adjudged that the plaintiff may retake her former name, to wit, Sallie Mae Allen. It is further adjudged, ordered, and decreed that the title to the one-half (1/2) interest in the property known as number 51 Booker Street, North-west, Atlanta, Georgia, fully described in and conveyed by warranty deed, dated February 26, 1935, recorded in clerk's office, Fulton Superior Court, in deed book 1544, folio 481, is vested in Sallie Mae Hubbard, plaintiff in said case.
"It is further adjudged, ordered, and decreed that in the event that the defendant, Owen Hubbard, shall predecease the plaintiff, *Page 755 Sallie Mae Hubbard, his one-half (1/2) interest in said 51 Booker Street property shall vest absolutely in and become the property of said Sallie Mae Hubbard, at the death of said Owen Hubbard.
"It is further ordered, adjudged, and decreed that costs of the taxes, assessments, repairs, upkeep, and insurance against said property shall be borne equally by the said Sallie Mae Hubbard and Owen Hubbard.
"It is further ordered, adjudged, and decreed that Annie Allen, one of the defendants in said case, be and is hereby permanently enjoined and restrained from entering the premises at 51 Booker Street, Northwest, Atlanta, Ga. Ordered further that the defendant pay the costs of these proceedings. This 19th day of April, 1943."
The petition further alleged: That the decree does not follow the verdict because it fails to provide that, if Sallie Mae Hubbard should die before Owen Hubbard, the latter would have and own the half of said property which had been conveyed by the deed, and which the jury found should be the property of Owen Hubbard in the event that he survived Sallie Mae Hubbard. A motion for new trial in that case was, at his direction, filed by his counsel on April 14, 1943, but on August 9, 1943, was voluntarily dismissed by his attorneys without his knowledge or consent. The defendant here has previously filed an action, numbered 155,006 praying for relief which may be adjudicated herein, and she should be required to assert her claims in this case so as to avoid a multiplicity of actions. Since the defendant has remarried, it is against public policy for her to have and enjoy support from two — her present husband, and the plaintiff Hubbard her former husband. The verdict and decree made no provisions which authorizes the defendant to collect and have half of the rent from the property, but she is "being paid half of said rents;" and a receiver should be appointed to collect and hold the amounts paid for monthly rental pending the outcome of this case. That defendant is insolvent. Besides process, the plaintiff prayed that the verdict and judgment be vacated and set aside in so far as it related to all matters, except divorce; that the divorce action, referred to in the petition as being numbered 134,973, or such as it necessary, be considered a part of this petition; that the defendant be required to assert any claim, which she may have in case numbered 155,006, *Page 756 in this case so as to avoid a multiplicity of suits; that the divorce action numbered 134,973 be reinstated in so far as it relates to any right which the defendant has in the plaintiff's property as fixed by the verdict and judgment there; that a receiver be appointed; and for general relief.
The defendant demurred generally to the petition as amended on the following grounds: (1) The petition shows on its face that the matters sought to be adjudicated therein have already been adjudicated; (2) the petition shows on its face that, if any relief could be granted, it could be granted only in case number 134,973 in Fulton Superior Court; and (3) the petition sets forth no cause of action, either at law or in equity. To an order sustaining the demurrer and dismissing the case, the plaintiffs excepted. 1. The instant case was brought in equity to vacate and set aside a verdict and decree rendered in a court of competent jurisdiction. Error was assigned on an order sustaining a general demurrer to the petition. By the verdict and decree there, it had been adjudicated that a certain deed which one of the parties had made to an opposite party thereto, conveying an undivided half interest in certain described real estate, was valid and should not be canceled on the ground of fraud in its procurement. The verdict and judgment complained of were rendered in a case for divorce, alimony, and injunction, to which a cross-bill had been filed asking for the cancellation of a deed. It is contended that such verdict and decree are void because of fraud and should be vacated and set aside. Unless the relief now prayed be granted, the case is res judicata. Did the petition here state a cause of action for the relief sought? We think not. It is the general rule that a court of equity will not retry the same issues determined in a former hearing by a court of competent jurisdiction, in the absence of fraud, accident, or undue advantage of the prevailing party. 31 Am. Jur. 216, § 633. The Code, § 110-710, declares: "The judgment of a court of competent jurisdiction may be set aside by a decree in equity, for fraud, accident, or mistake, or the acts of the adverse party unmixed with the negligence or fault of the complainant." *Page 757
The grounds urged here why the verdict and decree should be set aside, are: (1) "During the pendency of the case . . she would not give him any final answer about reconciliation during the entire progress of the suit, but `lured him into the belief that she might agree in a recohabitation,' and for that reason he did not urge any defense until the final trial;" (2) that the final verdict and decree sought to be vacated and set aside were based on testimony falsely given by the opposite party as to the respective ages of the parties and the physical and mental condition of the plaintiff Hubbard; and (3) that counsel for the plaintiffs "scolded him [Hubbard]" at a time during the trial when he wanted to testify, and he was thereby prevented from giving his testimony, and later by his direction a motion for new trial was filed by his counsel of record, who afterwards, without his knowledge or consent, voluntarily dismissed it.
These grounds are without merit. Assuming that the estranged wife in the former case, under all the circumstances, may have been guilty of conduct which led her husband to believe that she would finally agree to reconcile the issues between them, and that this was done on her part to keep him from actively defending the action — nevertheless it affirmatively appears from the record here that he had ceased to rely on any such conduct prior to the second and final trial and actively contested the second verdict, which fixed the rights and liabilities of the parties about which complaint is only now made. Acts or conduct which is claimed to be wrongful, but upon which the opposite party did not rely or act to his injury, can not be said to be such fraud as will authorize a court of equity to vacate and set aside a verdict and decree. Bank of Doerun v. Fain, 148 Ga. 799 (98 S.E. 467). In McCowen v. Flanders, 155 Ga. 701 (118 S.E. 351), this court said: "Equity will interfere to set aside a judgment of a court of competent jurisdiction only where the party had a good defense of which he was entirely ignorant, or where he was prevented from making it by fraud or accident, or the act of the adverse party, unmixed with fraud or negligence on his part."
A petition asking that a verdict and decree be set aside because rendered on the perjured testimony of a named witness does not set forth a cause of action for that reason, where the petition also fails to allege that the witness has been duly convicted of the offense *Page 758 of prejury with respect to such testimony, and that the verdict and decree were based on that testimony alone. Code, § 110-706;Stephens v. Pickering, 192 Ga. 199 (3) (15 S.E.2d 202);Sword v. Roach, 175 Ga. 774 (166 S.E. 185); Hutchings v.Roquemore, 171 Ga. 359 (155 S.E. 675); Thomason v.Thompson, 129 Ga. 440, 449 (59 S.E. 236). In Hutchings v.Roquemore, supra, this court said: "A judgment obtained in a court in this State will not be set aside and declared to be of no effect, although the same was obtained and entered up in consequence of corrupt and wilful perjury, unless the person charged with such perjury shall have been thereof duly convicted, and unless it shall appear to the court that such judgment could not have been obtained and entered up without the evidence of such perjured person." Neither does the petition here allege a cause of action for the relief sought because of the alleged misconduct of the complaints' counsel. Where equity has jurisdiction to set aside a judgment or decree obtained through the perpetration of a fraud or other conduct which will justify it, it must be made to appear in an application for that purpose that such was perpetrated by the adverse party or his counsel or agents. Morris v. Morris, 76 Ga. 733; Lanier v.Nunnally, 128 Ga. 358 (57 S.E. 689); Dorsey v. Griffin,173 Ga. 802 (3) (161 S.E. 601). The petition here is wholly lacking in any averment that the opposite party or her counsel had any knowledge of or connection with any of the alleged wrongful acts which the plaintiffs here charged against their own counsel.
2. It is here contended that the verdict should be set aside because the jury did not award alimony, but "proceeded to condition future disposition of plaintiff's [Hubbard's] property, and said jury was without authority of law so to do, and contrary to any pleadings therefor in the petition of the plaintiff." Under the doctrine of res judicata, a judgment of a court of competent jurisdiction is conclusive between the same parties and their privies, as to all matters which were put in issue, or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered, until such judgment shall be reversed or set aside. Summer v. Summer, 186 Ga. 390 (197 S.E. 833); Code, § 110-501. That a verdict is contrary to law and contrary to the issues made by the pleadings, is a question which may be raised by a motion for new trial. Code, §§ 70-202, 110-101; Manry v. *Page 759 Stephens, 190 Ga. 305 (9 S.E.2d 58), and cases cited. Where, in a former suit between the same parties and relating to the same subject-matter, a verdict was rendered against a party, whose motion for new trial was afterwards voluntarily dismissed, a petition subsequently brought by such party to review and set aside the verdict is properly dismissed on general demurrer, where it appears that the grounds for review were such as were known, or could by reasonable diligence have been discovered in time to incorporate them in the motion for new trial made in the former case. Leathers v. Leathers, 138 Ga. 740 (76 S.E. 44); Doyle v. Donovan, 76 Ga. 41 (5), 44. Since these grounds for setting aside the verdict are ones which should have been incorporated in and insisted upon in a motion for new trial, the plaintiff is precluded by the judgment from now doing so.
3. A decree which does not follow the verdict is not for that reason void, but irregular, and may be amended on motion.Lenoard v. Collier, 53 Ga. 388; Latimer v. Sweat,125 Ga. 475 (54 S.E. 673), and cases cited. A judgment or decree which is amendable should not be set aside. Guilli v. Pierce,78 Ga. 49. In Latimer v. Sweat, supra, this court said: "Where in an attachment case no proceedings were taken as provided by law for the purpose of obtaining a general judgment against the defendant, but the judgment entered up was both generally against the defendant and specially to be enforced against the property attached, such a judgment could be amended by striking the general feature of it even after the expiration of the term when it was rendered." The decree here, if it did not follow the verdict, being amendable on motion therefor, it was not erroneous to sustain the general demurrer.
4. Since it was not error to sustain the general demurrer and dismiss the suit, it becomes unnecessary to pass upon the other issues presented by the record.
Judgment affirmed. All the Justices concur.