1. The court did not err in overruling the motion to strike count one of the petition.
2. The allegations of count two of the petition were insufficient to show that the original action against the complainant sought a judgment in personam, and the court erred in overruling the demurrers to this count.
No. 16235. JULY 14, 1948. Rhoda Hopkins filed her equitable petition in Bibb Superior Court against Clifford Toomer and F. C. McCullough in two counts, the first count alleging as follows: On February 18, 1947, Clifford Toomer instituted his suit in equity against the petitioner, alleging that she was the sole heir at law of Moody Hopkins, deceased, and praying specific performance of an alleged contract between him and Moody Hopkins, whereby Hopkins had agreed to make a will leaving to Toomer described land in Bibb County upon the condition that Toomer should look after and support Hopkins and furnish him financial aid for the rest of his life, the contract being fully performed by Toomer, but Hopkins had died leaving no will. In the petition filed by Toomer, it was alleged that Rhoda Hopkins was then a resident of Winter Haven, Florida, and service was attempted to be perfected upon her by publication in the manner provided by law for service of process on non-residents. On the date of the filing of such petition, and the dates when the publication of notices appeared, the petitioner was not a resident of Winter Haven, Florida, and was not a non-resident of the State of Georgia, but was, on each of the dates mentioned, and for many years previous thereto, a bona fide resident of the County of Bibb and State of Georgia, and she was not duly and legally served, and could not lawfully be duly and legally served with process in such equitable proceeding by publication, in the manner provided by law for service by publication on non-resident parties. The petitioner made no appearance or defense in the equitable proceeding, because she was never duly and legally served with process or notice thereof, and it proceeded to judgment, by default, in favor of Clifford Toomer and against the petitioner; adjudging and decreeing that all right, title, and interest which the petitioner had or might have in the described land was divested and *Page 35 the title thereof vested in Clifford Toomer. After the death of her husband, the petitioner took possession of the described land and is now occupying it as her home. On February 3, 1948, Clifford Toomer instituted a dispossessory warrant against her, for the possession of the premises, alleging that the title thereto had been vested in him under and by virtue of a decree of court. The warrant was executed by F. C. McCullough, Deputy Sheriff of the Municipal Court of Macon, on February 4, 1948. Unless Clifford Toomer and F. C. McCullough are enjoined from proceeding with the execution of the warrant, the petitioner will be evicted from the premises and left without home or shelter, and she has no adequate remedy at law. The prayers were for process; that the defendants be temporarily and permanently enjoined; that rule nisi issue; that the judgment rendered in the equitable proceeding for specific performance of the alleged contract between Clifford Toomer and Moody Hopkins be adjudged and decreed to be void and of no effect; and for other relief.
The second count of the petition made almost identical allegations in regard to the equitable suit by Clifford Toomer against her. The paragraph of this count in regard to the judgment obtained against her is as follows: "And that said case proceeded to judgment, by default, no appearance or defense being made for your plaintiff in said case, without any other or further notice or service thereof on your plaintiff, the court decreeing specific performance of said alleged contract between Clifford Toomer and Moody Hopkins, and decreeing that the title of said land should be vested in the said Clifford Toomer, to be held by him in as full and ample a manner as the same was then held by your plaintiff, said decree being rendered on the 30th day of January, 1948." In this count no allegation is made that the petitioner was a resident of the State of Georgia at the time the equitable proceeding was filed against her, but it is contended that "said equitable proceeding by Clifford Toomer against your plaintiff, being a proceeding for specific performance of an alleged contract to make a will, was a proceeding in personam, and was not such a case as could legally proceed to judgment, by constructive or substituted service." This count made the same allegations in regard to the dispossessory warrant, and contained the same prayers. *Page 36
The defendant, Clifford Toomer, filed general and special demurrers to count two of the petition. The trial judge overruled the demurrers, and overruled the defendant's oral motion to strike the first count, the motion being on the ground that there is no allegation in the petition that the defendant, Clifford Toomer, plaintiff in the judgment sought to be set aside, knew that the defendant in the judgment, Rhoda Hopkins, was not a non-resident of the State of Georgia when the petition on which the judgment was based was filed, and intended to defraud the courts of Georgia. The exception here is to the overruling of the demurrers and the motion to strike. 1. As authority for his contention that the court erred in overruling the oral motion to strike the first count of the petition, the plaintiff in error relies upon the ruling in the 5th headnote in Watters v. Southern BrightonMills, 168 Ga. 18 (147 S.E. 87), as follows: "A subsequent petition filed by the party upon whom the service was made by publication, to set aside such judgment, alleging that the party was not in fact a non-resident, but at the time of the suit was a resident of the State of Georgia, was insufficient, there being no allegation that the party obtaining the order knew of such residence within the State, and fraudulently imposed upon the court by misrepresenting the fact as to residence, thereby causing the court to entertain jurisdiction." In her petition to vacate and set aside the judgment against her, Mrs. Watters attached a copy of the petition on which such judgment was rendered. From her pleadings and exhibits it appears: Mrs. Watters entered into a written contract for the sale of lands in this State while a resident of the State of New York. It was provided in the contract that the purchaser had sixty days in which to pay the purchase-money. The purchaser notified her by mail that he desired to pay the purchase-money and she replied by mail that she would "call at her earliest convenience." She failed to comply with her statement that she would call, and upon trying to locate her the purchaser learned that she had moved and left no forwarding address. Two days before the expiration of the date for payment, the purchaser filed an equitable action for specific performance *Page 37 of the contract in the county where the land was located, and paid the purchase-money into court. The purchaser alleged that Mrs. Watters concealed herself in order to avoid receiving payment. By order of the court service was perfected by publication, and judgment was rendered decreeing title in the purchaser. In the subsequent proceeding to vacate and set aside the judgment, Mrs. Watters alleged (among other reasons for setting aside the judgment) that at the time of the service by publication she was a resident of Fulton County, Georgia. Her petition to vacate and set aside was dismissed on demurrer, and on review in this court the judgment of the lower court was affirmed. The ruling in the Watters case, that Mrs. Watters' petition should have alleged that the plaintiff in the original action against her knew of her residence in Georgia, and fraudulently procedured an order for service by publication, properly applied the rule as to fraud, since in the original action against her it was alleged that she had concealed herself in order to avoid receiving payment of the purchase-money. The facts of the Watters case are not in point in this case, and the trial court properly so held.
In the present case, Mrs. Hopkins does not attach a copy of the proceedings filed against her by Toomer. She alleges in this count, however, that Toomer's petition set out that she was a non-resident (which allegation she denies). No inference appears from the petition that Toomer made any effort to locate or contact Mrs. Hopkins in Florida, or to verify his allegation that she was a resident of the State of Florida. Fairly construed, Mrs. Hopkins' petition alleges that for many years previous to the filing of the action against her, and at the time of its pendency, she was a resident of Bibb County, Georgia, and it does not appear that she, in any way, at any time, concealed herself for the purpose of avoiding personal service upon her in the manner authorized by law for service upon residents of this State.
The Code, § 110-710, provides: "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." It has been held that judgments of a court erroneously entered should be set aside where the mistake was that of the court, and not that of parties to the litigation. See Kohn v. Lovett, 43 Ga. 179; *Page 38 Napier v. Bank of LaFayette, 183 Ga. 865 (189 S.E. 822). In Farmers Exchange Bank v. Ruse, Patten Co.,27 Ga. 391, it was held that a judgment in attachment would be enjoined where the defendant had a good defense and his failure to plead it was not due to any fault or negligence on his part, but was due to the fault of the plaintiff. In Brewer v.Jones, 44 Ga. 71, it was held that a judgment would be enjoined where a magistrate failed to mark counsel's name on the docket in a case pending before him, and owing to this mistake, a judgment was rendered, and the defendant being ignorant of what had transpired permitted the time for appeal to elapse. InTumlin v. O'Bryan Brothers, 68 Ga. 65, it was held that a bill in equity would lie to vacate a judgment rendered by the court as though the case were in default, when actually there was an issuable plea filed. In Dollar v. Fred W. Amend Co.,184 Ga. 432 (191 S.E. 696), it appeared that the clerk of the superior court failed to properly number and docket an attachment case, and that attorneys for the defendant were misled into believing that no declaration in attachment had been filed; the defendant had a meritorious defense, and this court sustained the grant of an interlocutory injunction against the execution in such case.
Since the sole should objection urged to count one of the petition was that this count should have alleged fraud, the court did not err in overruling the motion to strike.
2. The second count of the petition seeks to set aside the judgment obtained by Toomer against the petitioner, for the reason that the proceeding for specific performance of an alleged contract to make a will was a proceeding in personam, and not such a case as could legally proceed to judgment against a non-resident by constructive or substituted service.
Service may be made by publication on a non-resident claiming an interest in real estate in this State in a case where it is sought to enforce, by decree for specific performance, any contract in reference thereto. Code, § 81-205. In a proceeding where the non-resident is not served personally, and does not waive service, if the relief sought is only such as operates against the person, the court is without jurisdiction to render a decree granting such relief. Hamil v. Flowers, 133 Ga. 216 (65 S.E. 961); Bank of Floral City v. Warnock, 144 Ga. 118 *Page 39
(86 S.E. 249); Reeves v. Tarnok, 161 Ga. 838 (131 S.E. 891). However, under proper allegations and prayers, in a proceeding seeking specific performance, the courts of this State can determine the title of lands within the State in the county where the land lies, although service is had on the non-resident defendant by publication only. Harris v. Palmore, 74 Ga. 277;Watters v. Southern Brighton Mills, supra; Sweat v.Arline, 186 Ga. 465 (197 S.E. 893).
The petition in this case does not have attached to it any copy of the proceedings in the former case, nor does it show what the prayers were in the former proceeding. The petition to vacate the judgment does not show that the former proceeding was in personam against the non-resident defendant, and the court erred in overruling the demurrers to the second count of the petition.
Judgment affirmed in part, and reversed in part. All theJustices concur, except Bell, J., absent on account of illness.