1. "When a judgment has been rendered, either party may move in arrest thereof, or to set it aside for any defect not amendable which appears on the face of the record or pleadings." Code, § 110-702. "If the pleadings are so defective that no legal judgment can be rendered thereon, the judgment will be arrested or set aside." § 110-704. "A judgment may not be arrested or set aside for any defect in the pleadings or record that is aided by verdict or amendable as matter of form." § 110-705. Under the rule last stated, a petition, although defective and although subject to general demurrer, in that it omits to set forth all the necessary ingredients of a cause of action, will not render the judgment based thereon subject to be set aside on a motion made for that purpose, unless it be that the petition shows on its face, not only that no cause of action is set forth, but that a cause of action did not in fact exist. Merritt v. Bagwell, 70 Ga. 578 (3), 595; Stanford v. Bradford, 45 Ga. 97, 98; Fitzpatrick v. Paulding, 131 Ga. 693 (63 S.E. 213); Weems v. Kidd, 37 Ga. App. 8 (2, 3) (138 S.E. 863); Chapman v. Taliaferro, 1 Ga. App. 235, 238 (58 S.E. 128); So. Ry. Co. v. Morrison, 8 Ga. App. 647, 648 (70 S.E. 91); Rollins v. Personal Finance Co., 49 Ga. App. 365, 366 (175 S.E. 609), and cit.
2. The motion to set aside a final decree in equity asserts that the record of the original case, a copy of which is attached to the present motion, shows on its face that the decree as rendered was unauthorized and therefore void, in that certain facts essential to sustain the decree were omitted therefrom, and that other essential facts were negatived by the *Page 891 decree and the record. There is no merit in the first of these contentions, since the matters omitted were obviously such as could have been supplied by amendment; and under the statute governing the setting aside of judgments, if the decree could have been amended, it was in legal effect amended. Nor is there merit in the second contention, that the decree shows on its face that it could not have been legally rendered. The fact that in the former proceeding the movant may have pleaded the absence of essential facts, and may now support his pleading with affidavits, is not the equivalent of showing that such facts were undisputed, or that the court made a finding in his favor with respect thereto.
3. Moreover, irrespective of the preceding rulings, it appears that the equitable decree now sought to be set aside was entered upon the written consent of counsel on both sides. This being the case, the decree will be given force and effect in the absence of a showing that it was rendered through fraud, accident, or mistake, none of which appears. Goolsby v. Goolsby, 146 Ga. 763, 766 (92 S.E. 521); Howell v. Howell, 188 Ga. 803, 805 (4 S.E.2d 835), and cit.
4. Under the foregoing rulings, the court properly dismissed on general demurrer the motion to set aside the previous final decree.
Judgment affirmed. All the Justicesconcur.
No. 14103. MAY 21, 1942. The plaintiff in a former equity case filed a motion or petition to set aside the final decree rendered therein about two and a half years before the present proceeding. The original case involved state and county tax executions, and deeds to the county as purchaser at sales of the petitioner's lands; the county being the defendant, and praying for counter relief against the plaintiff, who is the present movant. The original decree purported to vest title in the county to part of the lands claimed in its pleadings, but allowed the plaintiff [movant] a year within which to pay the amounts found to be due, and, if not so paid, provided that the sheriff place the county in possession without further order. The record shows a sheriff's return that after the expiration of a year, without the plaintiff's payment of the amounts stated, the sheriff had put the county in possession. This original decree was entered by written consent of both parties, the names of their counsel of record being signed thereto.
The sole grounds of the present motion to set aside that decree are that it is void on its face, because it fails to require that the county pay to the sheriff the amounts of its bids at the tax sales, as required by the then existing law, and because the decree and *Page 892 record fail to show that these amounts were paid; and because the decree and record show on their face that the county has not paid these amounts, and show that the plaintiff (movant) had acquired a seven-years prescriptive title to the lands in question.
The only reference in the record to any alleged failure by the county to pay its bids appears in the movant's pleadings in the original case, where she made that contention; and in affidavits by former levying officers attached to the present motion. These affidavits recite that they were prepared for use as evidence in the original case. However, it does not appear that they were ever introduced in evidence at any hearing; nor does it appear that the court ever found in favor of this contention, or that it was ever admitted by the county.
The present motion or petition to set aside the original decree is entitled in the same original cause, and no process was issued in this proceeding. The only prayers now made are that the decree be set aside as void, and that the sheriff be directed to place the movant back in possession of the lands.
The court dismissed the present motion upon general demurrer on the grounds, that no facts were alleged such as to authorize the relief prayed or any relief; that it affirmatively appeared that the plaintiff was seeking to set aside a decree to which she and her counsel had consented, and there was no averment as to fraud, accident, or mistake; and that all of the matters now alleged were adjudicated or could have been adjudicated by the former decree, and such matters are now res judicata.