1. This was a suit upon a sworn open account, as provided in the Civil Code (1910), § 4730, the same being an unliquidated demand. The affidavit as to correctness of the account antedated, and like the account was attached to, the original summons as a part thereof. The original summons, properly construed in connection with the sworn account, was a suit upon an unliquidated demand for $100 as principal debt, and $16.33 interest, the amount sworn to be due in the affidavit. The demand for the amount above stated was in effect a disclaimer for any part of the principal debt in excess of $100.
2. The demand being of the character above stated and the amount of principal debt claimed by the plaintiff being not in excess of $100, the justice’s court had jurisdiction of the case. Jennings v. Stripling, 127 Ga. 778 (56 S. E. 1026).
3. A justice of the peace has no authority to set aside a judgment rendered by him (Dalton City Co. v. Haddock, 54 Ga. 584; Doughty v. Walker, 54 Ga. 595; Mills v. Bell, 136 Ga. 687, 71 S. E. 1120); and consequently where a judgment based on the summons referred to in the first note had been regularly entered upon the docket of the justice of the peace, the subsequent entering of a second judgment on the same ' day before adjournment of the court, purporting to set aside the first mentioned judgment, was itself void and should be treated as a nullity. Civil Code (1910), § 5964; Greene v. Oliphant, 64 Ga. 565 (2).
(а) The alleged grounds upon which the first judgment was set aside were: (1) The amount claimed by the plaintiff exceeded the jurisdiction of the court. (2) Fraud practiced upon the attorney for the defendant, which prevented him from attending the court.
(б) If the judgment was obtained by fraud as indicated above, the fraud could be waived, leaving the judgment to stand enforceable, or, if not subsequently waived, it could be set aside in a court of equity, at the instance of the losing party to the judgment (McClatchey v. Bryan, 144 Ga. 292 (1b), 86 S. E. 1085), but until set aside it would be binding.
4. The issuance of an execution by a justice of the peace upon a judgment rendered in the justice’s court is a ministerial act. Scott v. Bedell, 108 Ga. 205 (2) (33 S. E. 903). Consequently, relationship of the justice of the peace to one of the parties does not disqualify the justice of the peace from issuing the execution.
5. It is the duty of a justice of the peace to issue an execution upon a judgment rendered in his court; and where there is a refusal to perform such duty, mandamus is an available remedy against him. Scott v. Bedell, supra.
6. The court erred in refusing a mandamus absolute.
Judgment reversed.
All the Justices concur, except Atkinson, J., who dissents on account of the ruling in the second note. *826No. 5469. February 24, 1927. J. A. Mitchell and P. H. Mitchell, for plaintiffs. Hawes Cloud, for defendant.