2020 Georgia Code
Title 23 - Equity
Chapter 1 - General Provisions
§ 23-1-25. Laches

Equity gives no relief to one whose long delay renders the ascertainment of the truth difficult, even when no legal limitation bars the right.

(Orig. Code 1863, § 3027; Code 1868, § 3039; Code 1873, § 3094; Code 1882, § 3094; Civil Code 1895, § 3939; Civil Code 1910, § 4536; Code 1933, § 37-119.)

- Authority of courts of equity to interpose equitable bar owing to lapse of time and laches of complainant, § 9-3-3.

Tolling of limitations due to fraud of defendant or those under whom one claims, § 9-3-96.

ANALYSIS

• General Consideration
• Equitable Demands Must Be Asserted Within Reasonable Time
• Laches Based on Inequity
• Pleading and Practice

Equitable doctrine of laches is not applicable to suits at law. Columbus Bank & Trust Co. v. Dempsey, 120 Ga. App. 5, 169 S.E.2d 349 (1969).

Equity will relieve against mutual mistake, but only at the instance of a complainant who moves with reasonable diligence. What is a reasonable time must necessarily depend upon the peculiar facts and environments of the particular case. Parker v. Fisher, 207 Ga. 3, 59 S.E.2d 715 (1950).

If both parties are equally to blame for delay, neither should be allowed to invoke the rule of laches in order to gain advantage over one's adversary. City of McRae v. Folsom, 191 Ga. 272, 11 S.E.2d 900 (1940); Davis v. Newton, 217 Ga. 75, 121 S.E.2d 153 (1961).

Generally, doctrine of laches will be invoked only when there will be prejudice to a party's position. Ansley Park Plumbing & Heating Co. v. Mikart, Inc., 9 Bankr. 144 (Bankr. N.D. Ga. 1981).

- Trial court did not err in refusing to deny property owners' petition to quiet title due to laches because the owners acquired their property on April 21, 2000, and over the next several years, the owners made repeated requests to adjoining landowners to stop using the street for anything other than access from the owners' driveways to the highway, but the adjoining landowners refused; the adjoining landowners identified no change in circumstance during the intervening years that would qualify as prejudice. Goodson v. Ford, 290 Ga. 662, 725 S.E.2d 229 (2012).

- Judgment forgiving a father's child support arrearage based on the mother's delay in making the claim was reversed because laches does not apply to claims for uncollected child support and the dormancy statute, O.C.G.A. § 9-12-60(a), did not apply to child support orders entered after July 1, 1997, such as the one involved in the case. Wynn v. Craven, 301 Ga. 30, 799 S.E.2d 172 (2017).

Cited in Griffin v. Haden, 172 Ga. 478, 157 S.E. 686 (1931); Freeney v. Pape, 185 Ga. 1, 194 S.E. 515 (1937); Kinney v. Mayor of Milledgeville, 185 Ga. 866, 196 S.E. 467 (1938); Wright v. City of Metter, 192 Ga. 75, 14 S.E.2d 443 (1941); Miller v. Everett, 192 Ga. 26, 14 S.E.2d 449 (1941); Grant v. Hart, 192 Ga. 153, 14 S.E.2d 860 (1941); Gunby v. Turner, 194 Ga. 378, 21 S.E.2d 640 (1942); Lankford v. Holton, 195 Ga. 317, 24 S.E.2d 292 (1943); Williams v. Porter, 202 Ga. 113, 42 S.E.2d 475 (1947); Larkins v. Boyd, 205 Ga. 69, 52 S.E.2d 307 (1949); Calhoun County v. Early County, 205 Ga. 169, 52 S.E.2d 854 (1949); Gay v. Radford, 207 Ga. 38, 59 S.E.2d 915 (1950); Flannagan v. Clark, 207 Ga. 345, 61 S.E.2d 485 (1950); Barron v. Darden, 207 Ga. 350, 61 S.E.2d 497 (1950); Vinson v. Citizens & S. Nat'l Bank, 208 Ga. 813, 69 S.E.2d 866 (1952); Todd v. Bivins, 215 Ga. 402, 110 S.E.2d 768 (1959); Consumers Fin. Corp. v. Lamb, 218 Ga. 343, 127 S.E.2d 914 (1962); Fuller v. Fuller, 107 Ga. App. 429, 130 S.E.2d 520 (1963); Blackstock v. Murphy, 220 Ga. 661, 140 S.E.2d 902 (1965); Brown v. Granite Holding Corp., 221 Ga. 560, 146 S.E.2d 289 (1965); Fuller v. McBurrows, 229 Ga. 422, 192 S.E.2d 144 (1972); Gauker v. Eubanks, 230 Ga. 893, 199 S.E.2d 771 (1973); Sikes v. Sikes, 231 Ga. 105, 200 S.E.2d 259 (1973); Wilson v. Passmore, 240 Ga. 716, 242 S.E.2d 124 (1978); Sakas v. Jessee, 202 Ga. App. 838, 415 S.E.2d 670 (1992); Troup v. Loden, 266 Ga. 650, 469 S.E.2d 664 (1996); Hall v. Trubey, 269 Ga. 197, 498 S.E.2d 258 (1998); City of Duluth v. Riverbrooke Properties, Inc., 233 Ga. App. 46, 502 S.E.2d 806 (1998); Parker v. Shreve, 244 Ga. App. 350, 535 S.E.2d 332 (2000).

There is no principle of equity sounder, more conservative and more prolific, in all the fruits of peace, than this: that one who slumbers over one's rights, with no impediment to one's asserting them, until the evidence upon which a counterclaim is founded, may from lapse of time, be presumed to be lost; until the generation cognizant of the transactions between the parties, has passed away, and until original actors are in their graves, and their affairs are left to representatives - the law, in the exercise of an equitable sovereignty, presumes it to be unjust, that under such circumstances, a complainant should be heard; and in nine cases out of ten, it is unjust in fact, as well as in theory. The principle upon which courts of equity proceed in such cases, is, that the lateness of the demand, arising from lapse of time, is presumptive evidence against its justice. Welch v. Welch, 215 Ga. 198, 109 S.E.2d 757 (1959).

Equity will not aid in the enforcement of stale demands. Cannon v. Fulton Nat'l Bank, 206 Ga. 609, 57 S.E.2d 917 (1950); Phillips v. Hayes, 212 Ga. 148, 81 S.E.2d 19 (1956); Welch v. Welch, 215 Ga. 198, 109 S.E.2d 757 (1959).

Defendant's suit is properly barred by laches when defendant's claim of a resulting trust in a house is based on payments made 35 years ago to a person who is the sole record owner and is now dead. Stone v. Williams, 265 Ga. 480, 458 S.E.2d 343 (1995).

Rule that equity will not aid in the enforcement of stale demands applies to accounts. Cannon v. Fulton Nat'l Bank, 206 Ga. 609, 57 S.E.2d 917 (1950).

In a suit to rescind the sale of land, the plaintiff's voluntary failure to bring suit for three years after being fully cognizant of the fraud committed seven years prior thereto is such laches as will bar an action. Hillis v. Clark, 222 Ga. 604, 150 S.E.2d 922 (1966).

When no legal redemption of the land is alleged, or claimed, but the redemption is entirely an equitable one, persons claiming thereunder must assert their equitable demands within a reasonable time, for since equity rewards the vigilant, not the slothful, when the delay is such as to render the ascertainment of the truth difficult, equity will give no relief. Slade v. Barber, 200 Ga. 405, 37 S.E.2d 143 (1946).

- Even after the dissolution of a partnership, the statute of limitations does not begin to run in favor of one partner against another until the partnership affairs, as to debtors and creditors of the firm, have been wound up and settled, or, at least, a sufficient time has elapsed since the dissolution to raise the presumption that such was the fact, nor, while there are outstanding assets and liabilities, will a partner be barred as against a copartner, on the principle of stale demands. Powell v. Powell, 171 Ga. 840, 156 S.E. 677 (1931), later appeal, 179 Ga. 817, 177 S.E. 566 (1934).

There is no absolute rule as to what constitutes laches or staleness of demand, and no one decision constitutes a precedent in the strict sense for another. Each case is to be determined according to its own particular circumstances. Laches is not, like limitations, a mere matter of time, but principally a question of the inequity of permitting the claim to be enforced, an inequity founded on some intermediate change in conditions. Bleckley v. Bleckley, 189 Ga. 47, 5 S.E.2d 206 (1939); Yablon v. Metropolitan Life Ins. Co., 200 Ga. 693, 38 S.E.2d 534 (1946).

Laches is not, like limitations, a mere matter of time. but is principally a question of the inequity of permitting the claim to be enforced, an inequity founded on some intermediate change in conditions. Cooper v. Aycock, 199 Ga. 658, 34 S.E.2d 895 (1945).

Mere lapse of time is usually insufficient to activate the doctrine of laches. Ansley Park Plumbing & Heating Co. v. Mikart, Inc., 9 Bankr. 144 (Bankr. N.D. Ga. 1981).

In determining whether there has been laches, there are various things to be considered, notably the duration of the delay in asserting the claim, and the sufficiency of the excuse offered in extenuation of the delay, whether plaintiff acquiesced in the assertion or operation of the corresponding adverse claim, the character of the evidence by which plaintiff's right is sought to be established, whether during the delay the evidence of the matters in dispute has been lost or become obscured or the conditions have so changed as to render the enforcement of the right inequitable, whether third persons have acquired intervening rights. Citizens' & S. Nat'l Bank v. Ellis, 171 Ga. 717, 156 S.E. 603 (1931); Johnson v. Sears, 199 Ga. 432, 34 S.E.2d 541 (1945); Cooper v. Aycock, 199 Ga. 658, 34 S.E.2d 895 (1945); Parker v. Fisher, 207 Ga. 3, 59 S.E.2d 715 (1950); Welch v. Welch, 215 Ga. 198, 109 S.E.2d 757 (1959); Erhart v. Brooks, 231 Ga. 272, 201 S.E.2d 464 (1973).

Delay in bringing suit must not be such as to preclude the court from arriving at a safe conclusion as to the truth of the matters in controversy, and thus make the doing of equity either doubtful or impossible, due to loss or obscuration of evidence of the transaction in issue, or when the lapse of time has been sufficient to create or justify a presumption that, if the plaintiff was ever possessed of a right, it had been abandoned, waived, or satisfied. Citizens' & S. Nat'l Bank v. Ellis, 171 Ga. 717, 156 S.E. 603 (1931); Flemister v. Billups, 202 Ga. 132, 42 S.E.2d 376 (1947); Welch v. Welch, 215 Ga. 198, 109 S.E.2d 757 (1959).

- While most frequently the bar of laches is applied in instances where the long delay has rendered the ascertainment of the truth difficult, the doctrine does not rest on that premise alone. Johnson v. Sears, 199 Ga. 432, 34 S.E.2d 541 (1945).

- An unreasonable delay until the death of essential witnesses, which practically precludes the court from arriving at a safe conclusion as to the truth of the matters in controversy, and which make the doing of equity either doubtful or impossible, due to loss or obscuration of evidence of the transaction in issue, will bar the action. Stephens v. Walker, 193 Ga. 330, 18 S.E.2d 537 (1942).

Death of essential witnesses, which may preclude the court from arriving at a safe conclusion as to the truth of matters in controversy, and which makes the doing of equity doubtful or impossible, will bar the action. Whitfield v. Whitfield, 204 Ga. 64, 48 S.E.2d 852 (1948).

- While most frequently the bar of laches is applied in instances when the long delay has rendered the ascertainment of the truth difficult, the doctrine does not rest on that premise alone. Bryan v. Willingham-Little Stone Co., 194 Ga. 563, 22 S.E.2d 40 (1942).

- Petition showing affirmatively that the plaintiffs were guilty of laches in not seeking for 18 years the cancellation of deeds conveying property in their mother's estate was properly dismissed on general demurrer (now motion to dismiss). Johnson v. Sears, 199 Ga. 432, 34 S.E.2d 541 (1945).

- A delay of 40 years or more, and the death of essential witnesses, when the truth of matters in controversy cannot be fairly established, makes the doing of equity either doubtful or impossible, and will bar the action. Slade v. Barber, 200 Ga. 405, 37 S.E.2d 143 (1946).

To charge a party with laches in delaying to assert a right, an opportunity to have acted sooner must have existed; if one acted at the first possible opportunity, one is not culpable. Cooper v. Aycock, 199 Ga. 658, 34 S.E.2d 895 (1945).

In a suit to cancel a deed on the ground of the grantor's insanity, when no reason appeared why the plaintiffs did not know, or by the slightest diligence could not have known, of the substantial facts, so as to bring the suit within a reasonable time after the deed was executed and after the grantor's death, the action was properly dismissed on demurrer (now motion to dismiss) on the ground that it was stale and that the plaintiffs were in laches. Hillis v. Clark, 222 Ga. 604, 150 S.E.2d 922 (1966).

To prevail on a plea of laches, it is essential that the pleading party prove harm caused the pleader by the delay. Clover Realty Co. v. J.L. Todd Auction Co., 240 Ga. 124, 239 S.E.2d 682 (1977).

- The defendant's plea of laches in a suit brought to enjoin the defendant from extending a parking area onto land zoned for single family dwellings cannot be sustained, when no facts are alleged to show any prejudice to the defendant, or that the ascertainment of the truth is made more difficult by any delay on the part of the plaintiffs to immediately seek relief against the defendant for the unlawful use of the plaintiff's property. Palmer v. Tomlinson, 217 Ga. 399, 122 S.E.2d 578 (1961).

Delay alone is never enough to show laches when there is an applicable statute of limitations. Clover Realty Co. v. J.L. Todd Auction Co., 240 Ga. 124, 239 S.E.2d 682 (1977).

Delay is excusable when it was induced by the adverse party; one cannot take advantage of a delay which one personally has caused or to which one has contributed. City of McRae v. Folsom, 191 Ga. 272, 11 S.E.2d 900 (1940).

- Former wife was not entitled to impose a constructive trust on her former husband's military pension pursuant to O.C.G.A. § 53-12-132 because she failed to object to the absence of any provision for the pension in their divorce decree for 12 years and failed to bring suit until 5 years after payments allegedly became due. Davis v. Davis, 310 Ga. App. 512, 713 S.E.2d 694 (2011).

Laches is not, like limitations, a mere matter of time, but principally a question of the inequity of permitting the claim to be enforced, an inequity founded on some intermediate change in conditions. Yablon v. Metropolitan Life Ins. Co., 200 Ga. 693, 38 S.E.2d 534 (1946); Whitfield v. Whitfield, 204 Ga. 64, 48 S.E.2d 852 (1948).

Laches does not arise from mere lapse of time. Columbus Bank & Trust Co. v. Dempsey, 120 Ga. App. 5, 169 S.E.2d 349 (1969).

In fixing the time when the bar of laches may be interposed, the court does not measure altogether by the lapse of time, because this section declares that: "Equity gives no relief to one whose long delay renders the ascertainment of the truth difficult, though no legal limitation bars the right." Bass v. Mayor of Milledgeville, 180 Ga. 156, 178 S.E. 529 (1934), appeal dismissed, 295 U.S. 721, 55 S. Ct. 926, 79 L. Ed. 1675 (1935).

Laches is an equitable doctrine which is independent of the statute of limitations, and as to the lapse of time necessary for invoking the doctrine of laches, such time may or may not correspond with the time specified in the statute of limitations. Prudential Ins. Co. v. Sailors, 69 Ga. App. 628, 26 S.E.2d 557 (1943); Johnson v. Sears, 199 Ga. 432, 34 S.E.2d 541 (1945).

- While the equitable doctrine of laches operates independently of any statute of limitations, courts of equity usually act in obedience and in analogy to the statutes of limitations, in cases when it would not be unjust and inequitable to do so. Cooper v. Aycock, 199 Ga. 658, 34 S.E.2d 895 (1945).

Lapse of time is an important element of laches; yet, unless a case falls within the operation of a statute of limitations, there is no fixed period within which a person must assert ones claim or be barred by laches; the length of time depends on the circumstances of the particular case. Cooper v. Aycock, 199 Ga. 658, 34 S.E.2d 895 (1945).

Period from which laches is determined is fixed in equity cases according to the circumstances of each case. Bryan v. Willingham-Little Stone Co., 194 Ga. 563, 22 S.E.2d 40 (1942).

- The doctrine of laches not only forbids relief to one whose long delay renders the ascertainment of truth difficult, though no legal limitation bars the right, but also authorizes equity to interpose an equitable bar, whenever, from the lapse of time and laches of the complainant, it would be inequitable to allow a party to enforce the party's legal rights. Goodwin v. First Baptist Church, 225 Ga. 448, 169 S.E.2d 334 (1969), later appeal, 226 Ga. 524, 175 S.E.2d 868 (1970).

- In an equitable suit to obtain possession of lands, under a rule analogous to the rule of law permitting title by adverse possession to be acquired in seven years under color of title, claimants would be barred after such time by their laches. Slade v. Barber, 200 Ga. 405, 37 S.E.2d 143 (1946).

- On an equitable petition seeking merely a cancellation of a deed, although "equity follows the analogy of the law" in allowing the seven-year period of limitation, this time is permitted only if there are no special circumstances demanding an earlier application, and when such circumstances exist, calling for an interposition of the equitable doctrine of laches, equity will refuse relief to one whose long delay renders the ascertainment of the truth difficult, though no legal limitation bars the right. Stephens v. Walker, 193 Ga. 330, 18 S.E.2d 537 (1942).

The rules of limitation do not apply if the defendant, or those under whom the defendant claims, has been guilty of a fraud by which the plaintiff shall have been debarred or deterred from the plaintiff's action. In such a case, the period of limitation shall run only from the time of the discovery of the fraud, and equity applies a similar rule as to laches. Stephens v. Walker, 193 Ga. 330, 18 S.E.2d 537 (1942).

The statute of limitations is a statute of repose. When a person is defrauded, and has knowledge of the fraud, the person must ask redress, if at all, within the period of limitation. If the person waits for a longer period, the person is bound by laches. Slade v. Barber, 200 Ga. 405, 37 S.E.2d 143 (1946).

- Fraud, which should have been discovered if usual and reasonable diligence had been exercised, is not a good reply to the statute of limitations. Slade v. Barber, 200 Ga. 405, 37 S.E.2d 143 (1946).

- It is necessary that the complainant show, by specifications, wherein the fraud consists in order to prevent the application of laches against the complainant. Issuable facts must be charged. Welch v. Welch, 215 Ga. 198, 109 S.E.2d 757 (1959).

- Period of the delay in bringing suit to decide if it is barred by laches is measured from the time the cause of action was possessed by the party charged with laches or the party's privies. Chapman v. McClelland, 248 Ga. 725, 286 S.E.2d 290 (1982).

Pleading and Practice

Defense of laches must be alleged.

- A petition is not demurrable (now subject to motion to dismiss) on the ground of laches on the part of the petitioner, when nothing in the petition authorizes the inference that there was any delay on the petitioner's part, suit being brought within the statute of limitations, which rendered the ascertainment of the truth more difficult, or in any way hindered the defendant city in making its defense. Vickers v. City of Fitzgerald, 216 Ga. 476, 117 S.E.2d 316 (1960), overruled on other grounds, City of Chamblee v. Maxwell, 264 Ga. 635, 452 S.E.2d 488 (1994).

Laches is an equitable defense, and a petition for equitable relief is not subject to demurrer (now motion to dismiss) on the ground of laches unless the allegations of fact affirmatively show such defense. Henderson v. Henderson, 219 Ga. 310, 133 S.E.2d 251 (1963).

- It is incumbent on the plaintiff, in order to repel the presumption of unreasonable delay, to allege in the plaintiff's petition the impediments to an earlier prosecution of the plaintiff's claim. Parker v. Fisher, 207 Ga. 3, 59 S.E.2d 715 (1950).

When the petition affirmatively shows that there has been unusual and unreasonable delay in bringing the action, it is incumbent upon the plaintiffs to show that the plaintiff were not guilty of laches. Hillis v. Clark, 222 Ga. 604, 150 S.E.2d 922 (1966).

When it cannot be said as a matter of law that the plaintiff was dilatory in asserting the plaintiff's claim, then the defense of laches is a question for the jury and summary judgment cannot be granted the defendant on the issue. Davidson Mineral Properties, Inc. v. Gifford-Hill & Co., 235 Ga. 176, 219 S.E.2d 133 (1975).

- Supreme Court of Georgia concluded that case law supporting that a mandamus action can be barred by gross laches is the correct rule; thus, Crow v. McCallum, 215 Ga. 692, 696 (113 S.E. 203) (1960), and its progeny, were wrongly decided and overruled. Marsh v. Clarke County Sch. Dist., 292 Ga. 28, 732 S.E.2d 443 (2012).

Plaintiff's right to recover plaintiff's share of the remainder estate is a plain statutory right not subject to the bar of laches. Perkins v. First Nat'l Bank, 221 Ga. 82, 143 S.E.2d 474 (1965).

One in possession of land is not chargeable with laches in failing to bring suit to cancel deeds. Marietta Realty & Dev. Co. v. Reynolds, 189 Ga. 147, 5 S.E.2d 347 (1939); Davis v. Newton, 217 Ga. 75, 121 S.E.2d 153 (1961).

One who is in possession of property under a claim of ownership will not be guilty of laches for delay in resorting to a court of equity to establish one's rights. Davis v. Newton, 215 Ga. 58, 108 S.E.2d 809 (1959).

- Trial court's denial of a decedent's father's motion for partial summary judgment pursuant to O.C.G.A. § 9-11-56 in an action against the decedent's mother and the estate administrator was proper, because the defense of laches under O.C.G.A. § 23-1-25 was appropriate in defense of the father's request for imposition of a constructive trust on an annuity that was purchased with the wrongful death settlement proceeds, and the defense of advice of counsel under O.C.G.A. § 15-19-17 against the father's claim of breach of fiduciary duty was relevant to the mother's state of mind. Rhone v. Bolden, 270 Ga. App. 712, 608 S.E.2d 22 (2004).

RESEARCH REFERENCES

Am. Jur. 2d.

- 27 Am. Jur. 2d, Equity, §§ 93, 152 et seq., 159 et seq.

- 30 C.J.S., Equity, § 100. 31 C.J.S., Equity, § 113 et seq.

- Laches as affecting right of corporation or its stockholders to relief against directors for violations of trust, 10 A.L.R. 370.

Laches as preventing recovery of property diverted from one religious sect or denomination to another, 18 A.L.R. 692.

Check in payment of interest or installment of principal as tolling statute of limitations, 28 A.L.R. 84; 125 A.L.R. 271.

Institution of suit as relieving one of charge of laches precluding relief in equity, 43 A.L.R. 921.

Effect of recovery of judgment on unfiled or abandoned claim after expiration of time allowed for filing claim against estate, 60 A.L.R. 736.

What amounts to laches or delay on part of wife or widow in attacking antenuptial settlement which will prevent relief, 74 A.L.R. 559.

Right to equitable relief from usury as affected by laches, 111 A.L.R. 126.

Applicability of statute of limitations or doctrine of laches as between husband and wife, 121 A.L.R. 1382.

Statute of limitations or presumption of payment from lapse of time as ground for affirmative relief from debt or lien, 164 A.L.R. 1387.

Workers' compensation: time and jurisdiction for review, reopening, modification, or reinstatement of award or agreement, 165 A.L.R. 9.

Pleading laches, 173 A.L.R. 326.

Delay of stockholders in exercising their right to convert their stock into other class of stock or corporate obligation, 10 A.L.R.2d 587.

Applicability of statute of limitations or laches to quo warranto proceedings, 26 A.L.R.2d 828.

Laches as precluding cancellation of or other relief against release for personal injuries, 34 A.L.R.2d 1314.

What constitutes sufficient repudiation of express trust by trustee to cause statute of limitations to run, 54 A.L.R.2d 13.

Delay in asserting contractual right to arbitration as precluding enforcement thereof, 25 A.L.R.3d 1171.

Estoppel or laches precluding lawful spouse from asserting rights in decedent's estate as against putative spouse, 81 A.L.R.3d 110.

Applicability of statute of limitations or doctrine of laches to proceeding to revoke or suspend license to practice medicine, 51 A.L.R.4th 1147.

Laches or delay in bringing suit as affecting right to enforce restrictive building covenant, 25 A.L.R.5th 233.

• 23-2-1. When equity will set aside judgment [Repealed].
• 23-2-2. Setting aside sale or contract for inadequate consideration.
• 23-2-3. Payment of lost bonds or notes.

• 23-2-20. Which accidents relievable in equity.
• 23-2-21. What mistakes relievable in equity; power to relieve to be exercised cautiously.
• 23-2-22. Mistake of law in instrument by contracting parties.
• 23-2-23. Mistake of law in instrument by agent.
• 23-2-24. When mistake of fact relieved.
• 23-2-25. Form of conveyance contrary to intent.
• 23-2-26. Accident or mistake in execution of power.
• 23-2-27. Equitable interference not authorized by mere ignorance of law.
• 23-2-28. Equitable interference not authorized by mutual ignorance of fact; mistake in judgment of value.
• 23-2-29. Equitable interference not authorized by failure to exercise diligence; ignorance of fact absent fraud.
• 23-2-30. Reformation and execution of contract in case of mistake distinguished.
• 23-2-31. Rescission for unilateral mistake of fact.
• 23-2-32. When negligent complainant granted relief.
• 23-2-33. Mere volunteers, in general; exception for executed contracts.
• 23-2-34. Relief against original parties or privies; exception.

• 23-2-50. Concurrent jurisdiction over fraud.
• 23-2-51. Fraud as actual or constructive.
• 23-2-52. Misrepresentation as legal fraud.
• 23-2-53. Suppression of fact as fraud.
• 23-2-54. Surprise as a form of fraud.
• 23-2-55. Use of similar trademarks, names, or devices.
• 23-2-56. Consummation of fraud.
• 23-2-57. Proving existence of fraud.
• 23-2-58. Confidential relations defined.
• 23-2-59. Acquisition of antagonistic rights by one in confidential relationship.
• 23-2-60. Annulment of conveyances for fraud.

• 23-2-70. Scope of equity jurisdiction over matters of account.
• 23-2-71. Entitlement to contribution; when equity has jurisdiction.
• 23-2-72. Apportionment of contract, rent, or hire.
• 23-2-73. Discharge of encumbrances affecting several interests.
• 23-2-74. Burden of distinguishing mingled property.
• 23-2-75. Offer to pay balance unnecessary.
• 23-2-76. Equitable setoff.

• 23-2-90. Legal and equitable assets defined; rules of distribution.
• 23-2-91. When equity will interfere with administration of estates.
• 23-2-92. Application for direction or construction of will.
• 23-2-93. Marshaling assets of decedent's estate.
• 23-2-94. Compelled election in marshaling assets.
• 23-2-95. Creditors' petitions.
• 23-2-96. When equitable assets may be reached by creditor.
• 23-2-97. Time limit for intervention in case disposing of assets; publication of order.
• 23-2-98. Application of joint and individual assets to debts.

• 23-2-110. Equitable jurisdiction over powers.
• 23-2-111. Exercise of discretionary powers not compellable generally.
• 23-2-112. When faithful execution of power compellable.
• 23-2-113. When equity may relieve against collusive, illusory, mistaken, etc., executions.
• 23-2-114. Powers of sale to be construed strictly; manner of sale; who may exercise.
• 23-2-115. When private sale authorized.
• 23-2-116. When powers of sale exercisable by successor administrator, trustee, or guardian.
• 23-2-117. When release, relinquishment, or covenant as to exercise of power of appointment authorized.
• 23-2-118. Release, relinquishment, or covenant as to exercise of power of appointment to be in writing; delivery or recordation.
• 23-2-119. When fiduciaries or bona fide purchasers affected by release, relinquishment, or covenant as to exercise of power of appointment.
• 23-2-120. Application of Code Sections 23-2-117 through 23-2-119.

• 23-2-130. When specific performance decreed generally.
• 23-2-131. When specific performance of parol contract for land decreed; sufficient part performance.
• 23-2-132. When voluntary agreement enforced.
• 23-2-133. Inadequacy of price; unfair or unjust contracts.
• 23-2-134. Vendor's ability to comply.
• 23-2-135. Damages when specific performance impossible.
• 23-2-136. Specific personalty; damages or delivery.

ARTICLE 1 GENERAL PROVISIONS

Cross references.

- Issuance of injunction to prevent nuisance, § 41-2-4.

ANALYSIS

• General Consideration
• Negligence
• Fraud
• Mistake of Fact
• Duress
• Ignorance Generally
• Failure to Present Meritorious Defense

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, annotations decided under former Code Section 23-2-1, repealed in 1986, are included in the annotations for this article.

Equity may set aside a void judgment, where diligence is proven. Norris v. Pollard, 75 Ga. 358 (1885).

Judgment cannot be attacked collaterally. Fricks v. Miller, 41 Ga. 274 (1870).

Judgment cannot be attacked collaterally even if procured through accident or mistake. Brooke v. F & M Bank, 27 Ga. App. 250, 108 S.E. 135 (1921).

A court of equity will not lend its aid to a party to a contract founded upon an illegal or immoral consideration; if the contract is executed, it will be left to stand, and if it be executory, neither party can enforce it. Fender v. Crosby, 209 Ga. 896, 76 S.E.2d 769 (1953).

- One invoking equitable relief against verdicts, as well as against judgments, should meet the usual requirement as to showing that his relief at law would be less adequate than his relief at equity. Gentle v. Georgia Power Co., 179 Ga. 853, 177 S.E. 690 (1934).

- The general rule is, that courts will not interfere after verdict at law, except in cases of fraud, or surprise, or in extraordinary cases where manifest injustice would be done; nor where the party might have defended himself fully at law and neglected it. Poole v. McEntire, 209 Ga. 659, 75 S.E.2d 20 (1953).

A person is generally committed to the contents of an instrument which he signs, even though he did not have actual knowledge thereof, in the absence of fraud or some other circumstances relieving him of the imputation of inexcusable indifference or neglect. Bach v. Phillips, 200 Ga. 308, 37 S.E.2d 407 (1946).

Absence of counsel, when caused by illness may be sufficient ground to set aside a judgment. Clark v. Ramsay, 138 Ga. 726, 75 S.E. 1128 (1912).

Absence of a party may be sufficient grounds for setting aside a judgment. McCall v. Miller, 120 Ga. 262, 47 S.E. 920 (1904).

General rule that an infant is bound by a judgment rendered in a suit in which he is represented by a next friend, to the same extent as though he were an adult, is subject to an exception in case of fraud, collusion, or like conduct on the part of the next friend, in which case the judgment may be set aside at the instance of the minor, even though it may be a consent judgment. Nelson v. Estill, 190 Ga. 235, 9 S.E.2d 73 (1940).

A decree adversely affecting the interests of minors, even though it be entered by consent of their father as next friend, may, if induced by fraud, duress, or the like, be set aside at their instance in a proper proceeding, and for that purpose they may sue by their mother as next friend. Nelson v. Estill, 190 Ga. 235, 9 S.E.2d 73 (1940).

- When the parties agreed to continue the case, and for this reason a party fails to appear, one may have a judgment thus taken set aside. Southern Ry. v. Planters Fertilizer Co., 134 Ga. 527, 68 S.E. 95 (1910).

Affidavit of illegality is not proper remedy to arrest execution and set aside judgment by default. Tumlin v. O'Bryan & Bros., 68 Ga. 65 (1881).

Affidavit of illegality is not proper remedy for judgment procured by fraud. Ray v. Hixon, 107 Ga. 768, 33 S.E. 692 (1899).

Cited in Bryant v. Bush, 165 Ga. 252, 140 S.E. 366 (1927); Ellis v. Ellis, 174 Ga. 559, 163 S.E. 155 (1932); Walker v. Hall, 176 Ga. 12, 166 S.E. 757 (1932); Nolan v. Southland Loan & Inv. Co., 177 Ga. 59, 169 S.E. 370 (1933); Huson Ice & Coal Co. v. City of Covington, 178 Ga. 6, 172 S.E. 56 (1933); Jackson Disct. Co. v. Merck, 178 Ga. 660, 173 S.E. 647 (1934); Lovelace v. Lovelace, 179 Ga. 822, 177 S.E. 685 (1934); Gentle v. Georgia Power Co., 179 Ga. 853, 177 S.E. 690 (1934); Stroup v. Imes, 185 Ga. 422, 195 S.E. 411 (1938); Haygood v. Haygood, 190 Ga. 445, 9 S.E.2d 834 (1940); Hadden v. Willingham Auto. Fin. Corp., 67 Ga. App. 444, 20 S.E.2d 436 (1942); Bainbridge Farm Co. v. Bower, 194 Ga. 304, 21 S.E.2d 224 (1942); Rucker v. Upshaw, 199 Ga. 529, 34 S.E.2d 602 (1945); Hanleiter v. Spearman, 200 Ga. 289, 36 S.E.2d 780 (1946); Morris Plan Bank v. Simmons, 201 Ga. 157, 39 S.E.2d 166 (1946); Saliba v. Saliba, 202 Ga. 279, 42 S.E.2d 748 (1947); Hogg v. Hogg, 206 Ga. 691, 58 S.E.2d 403 (1950); Conway v. Gower, 208 Ga. 348, 66 S.E.2d 740 (1951); Poole v. McEntire, 209 Ga. 659, 75 S.E.2d 20 (1953); Johnson v. Johnson, 210 Ga. 795, 82 S.E.2d 831 (1954); Nuckolls v. Merritt, 216 Ga. 35, 114 S.E.2d 427 (1960); Hester v. Dixie Fin. Corp., 109 Ga. App. 204, 135 S.E.2d 504 (1964); Tripp v. Conner, 220 Ga. 2, 136 S.E.2d 744 (1964); Tucker v. Tucker, 221 Ga. 128, 143 S.E.2d 639 (1965); Saturday v. Saturday, 113 Ga. App. 251, 147 S.E.2d 798 (1966); Echols v. Tower Credit Corp., 223 Ga. 307, 154 S.E.2d 617 (1967); McSherry v. Israel, 223 Ga. 472, 156 S.E.2d 33 (1967); Kitchens v. Clay, 224 Ga. 325, 161 S.E.2d 828 (1968); Northern Freight Lines v. Fireman's Fund Ins. Cos., 121 Ga. App. 786, 175 S.E.2d 104 (1970); Lewis v. Lewis, 124 Ga. App. 579, 184 S.E.2d 672 (1971); Aetna Fin. Co. v. Pair, 141 Ga. App. 243, 233 S.E.2d 218 (1977); Wilson v. Passmore, 240 Ga. 716, 242 S.E.2d 124 (1978); Cooper v. Mesh, 247 Ga. 82, 274 S.E.2d 335 (1981).

Before equity will interfere to grant relief against a judgment at law, three things must concur: ignorance of the defense sought to be set up at the time the judgment at law was rendered, without negligence being imputable to the complainant, and a want of adequate relief at law. Beddingfield v. Old Nat'l Bank & Trust Co., 175 Ga. 172, 165 S.E. 61 (1932).

There is no relief from a judgment that could have been prevented but for the negligence of the party. Beddingfield v. Old Nat'l Bank & Trust Co., 175 Ga. 172, 165 S.E. 61 (1932).

- Where a defendant in a pending lawsuit negligently fails to make his defense, equity will not intervene to grant him any relief from a judgment obtained against him in consequence of his negligence. West v. Downer, 218 Ga. 235, 127 S.E.2d 359 (1962); Stratton v. Bingham, 238 Ga. 287, 232 S.E.2d 560 (1977).

When a party moving to set aside a judgment, during the term it was rendered, has been legally served with the suit and does not show that an alleged fraud practiced on him by the defendant prevented him from making his defense and having his day in court, it is beyond a court's power to grant the motion. Hirsch v. Collier, 104 Ga. App. 271, 121 S.E.2d 318 (1961).

- Equity will not intervene to set aside a judgment of a court of competent jurisdiction, which might have been prevented except for the negligence of the complaining party. W.T. Rawleigh Co. v. Seagraves, 178 Ga. 459, 173 S.E. 167 (1934).

If a party has a good defense at law, and from negligence fails to set it up at the proper time, he must take the consequences of his own laches; he cannot go into equity to be relieved from the consequences of such negligence. Peacock v. Walker, 213 Ga. 628, 100 S.E.2d 575 (1957).

As qualification of the rule controlling the setting aside of judgments or prerequisites to its exercise it must appear that it was not due to defendant's negligence that the fraud was perpetrated, and that due diligence would not have prevented the fraud. Hirsch v. Collier, 104 Ga. App. 271, 121 S.E.2d 318 (1961), later appeal, 106 Ga. App. 652, 127 S.E.2d 859 (1962).

To authorize setting aside a judgment after the term at which it was rendered, the actions of the adverse party that cause a party's failure to appear and defend must be of such character to show that reliance on them did not amount to laches or negligence. Hirsch v. Collier, 104 Ga. App. 271, 121 S.E.2d 318 (1961), later appeal, 106 Ga. App. 652, 127 S.E.2d 859 (1962).

The judgment probating a will in solemn form cannot be set aside on any ground which by due diligence could have been ascertained and pleaded as a defense against probate. Smith v. Smith, 225 Ga. 799, 171 S.E.2d 524 (1969).

- The failure of a defendant to attend and defend a suit against him cannot be relieved in equity upon the ground that he was advised by his attorney that the case would not be tried until a later term, where it is merely shown that such advice was based upon an incorrect and unwarranted assumption that the remainder of the term would be devoted to the trial of criminal cases. In such a case the erroneous assumption on the part of the attorney would be imputable to the client, and would afford no equitable ground for excusing his absence. W.T. Rawleigh Co. v. Seagraves, 178 Ga. 459, 173 S.E. 167 (1934).

When an administrator was sued upon an instrument alleged to have been executed by his intestate, and he did not know the instrument to be genuine, he should have exercised diligence to determine this fact before permitting judgment against him, and, where he knew or had reasonable cause to believe that the instrument would be introduced in evidence at the trial upon another defense which he had filed, when he would have a sufficient opportunity to discover the truth as to its genuineness, and he failed to avail himself of this opportunity and was absent from the trial only because of an unwarranted assumption by his attorney as to the time when the case would be tried, with the result that judgment was rendered against him, he cannot obtain the aid of a court of equity to set aside the judgment upon the ground that the instrument was a forgery and that he was ignorant of this defense at the time the judgment was rendered. In such case the failure to discover the defense before judgment cannot be accounted as an accident or misfortune, but is chargeable to the defendant as negligence, barring any claim for relief in equity. W.T. Rawleigh Co. v. Seagraves, 178 Ga. 459, 173 S.E. 167 (1934).

Where a wife voluntarily signed an acknowledgment of service and waiver of process with respect to a suit for divorce that was later to be prepared and filed against her by her husband, and after having signed such acknowledgment and waiver, left the state and made no investigation whatever as to the contents of the suit, which, as filed sought not only a divorce but also custody of the minor child of the parties, with judgment rendered accordingly as to both matters in favor of the husband, the wife's petition in equity to set aside the judgment showed such negligence on the part of the wife in failing to acquaint herself with the contents of the suit as to bar her right to equitable relief sought, and the court did not err in dismissing the petition despite the wife's allegation that there was a breach of an agreement by the husband that he would not seek custody in the suit. Bach v. Phillips, 200 Ga. 308, 37 S.E.2d 407 (1946).

- In order to set aside an award of the full workmen's compensation board (now Board of Workers' Compensation) which was entered pursuant to an agreement between the parties, because of fraud, accident or mistake, this fraud, accident or mistake is the same as is set forth in this section, and is not available where the person seeking to set aside the award has been guilty of fraud or negligence himself. Where an agreement signed by the claimant which is said to have been procured by fraud stated not only that the claimant did not suffer an injury which arose out of and in the course of her employment, but stated that she was not entitled to any compensation, such language being clear and understandable and it is not alleged that the claimant was prohibited from reading such agreement or that she did not read it, therefore, it must be concluded that the claimant was either negligent in failing to read such agreement or that she was negligent in signing it if some part of it was untrue and she had read it. McCord v. Employers Liab. Assurance Corp., 96 Ga. App. 35, 99 S.E.2d 327 (1957).

- Equity will not set aside judgment on the ground that a party and his attorney were prevented from attending the court by a statement previously made to them by the justice of the peace that case would not be tried on date actually set, but on the next day absent fraud on the opposite party or his counsel and any meritorious defense against the recovery had by the verdict. Dorsey v. Griffin, 173 Ga. 802, 161 S.E. 601 (1931).

- When the complainants negligently allowed three years to pass without seeking to set aside the judgment complained of at law, equity will not grant them any relief. Field v. Jordan, 124 Ga. 685, 52 S.E. 885 (1906).

When failure to secure witnesses was due to negligence, equity will not grant relief. McCaulis v. Duval, 69 Ga. 744 (1882).

Equity will not, by injunction, restrain the enforcement of a judgment when the defendant had notice of such judgment within the period of limitations, and negligently failed to take any action to have such judgment vacated or set aside within the time provided by law. Turner v. Avant, 205 Ga. 426, 54 S.E.2d 269 (1949).

Fraud

Fraud generally.

- Fraud in the procurement of a judgment to be set aside must have been actual and positive, done with knowledge, and not merely constructive fraud, committed in ignorance of the true facts. Rivers v. Alsup, 188 Ga. 75, 2 S.E.2d 632 (1939).

Deceitful practices in depriving or endeavoring to deprive another of his known right by means of some artful device or plan contrary to plain rules of common honesty constitute fraud. By this term is meant fraud perpetrated by some artifice or contrivance of the party or person benefited, whereby in the course of the trial, or in entering judgment, the injured party or the court has been imposed upon or betrayed into inattention or deceived. Johnson v. Bogdis, 205 Ga. 535, 54 S.E.2d 620 (1949), later appeal, 207 Ga. 650, 63 S.E.2d 658 (1951).

The word fraud may be construed to include duress. Duress is but a species of fraud where one is induced contrary to one's will from presenting a defense to a suit. Frost v. Frost, 235 Ga. 672, 221 S.E.2d 567 (1975).

To determine whether equity will set aside award for fraud, former Code 1933, §§ 37-111 and 37-709 (see O.C.G.A. §§ 23-1-20 and23-2-60) must be construed together. Tinsley v. Maddox, 176 Ga. 471, 168 S.E. 297 (1933).

The judicial power to set aside a judgment for fraud is recognized. Hirsch v. Collier, 104 Ga. App. 271, 121 S.E.2d 318 (1961).

The power to set aside a judgment for fraud may be exercised by courts having equity jurisdiction when proper grounds are shown. Hirsch v. Collier, 104 Ga. App. 271, 121 S.E.2d 318 (1961).

A federal district court could set aside for fraud a judgment of the court of ordinary (now probate court) discharging a guardian. Park v. Park, 37 F. Supp. 185 (N.D. Ga. 1941), later appeal, 123 F.2d 370 (5th Cir. 1941).

A proceeding to set aside for fraud a judgment of a court of ordinary (now probate court) discharging a guardian is authorized and could be maintained in the superior courts of the State of Georgia, and this without recourse to the court of ordinary which granted the judgment of discharge. Park v. Park, 37 F. Supp. 185 (N.D. Ga. 1941).

Party must be vigilant to detect fraud. One who has been negligent and inactive cannot obtain relief. Hirsch v. Collier, 104 Ga. App. 271, 121 S.E.2d 318 (1961), later appeal, 106 Ga. App. 652, 127 S.E.2d 859 (1962).

- While a court of equity in a proper case will set aside a judgment which is procured by fraud, such fraud must be one other than false and untrue testimony. Hutchings v. Roquemore, 171 Ga. 359, 155 S.E. 675 (1930).

To set aside an award for fraud, it is not sufficient to state the fraud in general terms, but such facts of fraud must be so stated that the court may see the illegality. Tinsley v. Maddox, 176 Ga. 471, 168 S.E. 297 (1933).

When a party moving to set aside a judgment, during the term it was rendered, has been legally served with the suit and does not show that an alleged fraud practiced on him by the defendant prevented him from making his defense and having his day in court, it is beyond a court's power to grant the motion. Hirsch v. Collier, 104 Ga. App. 271, 121 S.E.2d 318 (1961).

Fraud authorizing setting aside a judgment must come from the adverse party. Tinsley v. Maddox, 176 Ga. 471, 168 S.E. 297 (1933).

While a court of equity has authority to annul and set aside a judgment obtained by fraud, accident or mistake, it must be made to appear in an action therefor, where fraud is claimed, that the fraud was perpetrated by the adverse party, his counsel or agent. Pike v. Andrews, 210 Ga. 553, 81 S.E.2d 817 (1954).

Fraud that will authorize equity to set aside an award is fraud extrinsic or collateral to the matter tried by the first court, and not a fraud which was in issue in that suit; or it must be fraud or deception practiced on the unsuccessful party, by which he was prevented from exhibiting fully his case, and by which there has never been a real contest before court on the subject matter of the suit. Tinsley v. Maddox, 176 Ga. 471, 168 S.E. 297 (1933); Pike v. Andrews, 210 Ga. 553, 81 S.E.2d 817 (1954).

Before fraud will authorize a court of equity to vacate and set aside a judgment of a court having jurisdiction, it must appear that the fraud complained of was perpetrated by the prevailing party, his attorney or his agents. Poole v. McEntire, 209 Ga. 659, 75 S.E.2d 20 (1953); Pike v. Andrews, 210 Ga. 553, 81 S.E.2d 817 (1954).

Frauds for which the court may set aside a former judgment between the same parties do not include fraud in procuring a judgment by false testimony unless it is shown, among other things, that the witness has been convicted of perjury. Elliott v. Marshall, 182 Ga. 513, 185 S.E. 831 (1936).

A court of equity will not set aside a judgment, although obtained by willful and corrupt perjury, unless it appears that the perjurer has been convicted of such perjury, and unless it appears that a judgment could not have been rendered without the perjured testimony. Hutchings v. Roquemore, 171 Ga. 359, 155 S.E. 675 (1930).

Misrepresentation is one of the grounds on which equitable relief may be invoked in regard to judgments. Johnson v. Bogdis, 205 Ga. 535, 54 S.E.2d 620 (1949), later appeal, 207 Ga. 650, 63 S.E.2d 658 (1951).

- When one party does give the other assurances upon which the party can reasonably rely, that the suit will be dismissed or judgment will not be taken, and then procures a judgment taking advantage of the trust and confidence of the other party, the party misled, who is not negligent, has a ground to set aside the judgment. Hirsch v. Collier, 104 Ga. App. 271, 121 S.E.2d 318 (1961), later appeal, 106 Ga. App. 652, 127 S.E.2d 859 (1962).

- A petition in equity seeking to set aside a judgment dismissing petitioner's suit at law on general demurrer (now motion to dismiss), by consent of one of petitioner's attorneys and counsel for defendant, on the ground of false representations made by defendant's counsel to induce petitioner's counsel to consent to the judgment, which failed to allege that petitioner's counsel consented to the judgment in violation of express instructions of which the defendant or her counsel had notice or knowledge, failed to set forth a cause of action for equitable relief, and it was not error to dismiss the petition on general demurrer (now motion to dismiss). Pike v. Andrews, 210 Ga. 553, 81 S.E.2d 817 (1954).

- One who has obtained a judgment at law and who is not chargeable with fraud, will not be interfered with by a court of equity for the mere reason that a stranger perpetrated a fraud which prevented the other party to the judgment from interposing a defense. Beddingfield v. Old Nat'l Bank & Trust Co., 175 Ga. 172, 165 S.E. 61 (1932).

One who has obtained a judgment at law according to the prescribed method, and who is not chargeable with any conduct which would amount to fraud or imposition upon the adverse party in relation to the judgment, will not be interfered with by a court of equity for the mere reason that a stranger perpetrated a fraud which prevented the other party to the judgment from interposing a defense. Pike v. Andrews, 210 Ga. 553, 81 S.E.2d 817 (1954).

Mere failure of a party to disclose to the court or to the party's adversary matters which would defeat the party own claim or defense is not such fraud as will justify or require a vacation of the judgment. Buice v. T. & B. Bldrs., Inc., 219 Ga. 259, 132 S.E.2d 784 (1963).

Suppression of a material fact may constitute fraud such as will justify equity to set aside judgment obtained by it. Capital Bank v. Rutherford, 70 Ga. 57 (1883).

Fraud must be committed on complainant, or on complainant's agent. Mahan v. Cavender, 77 Ga. 118 (1886); Lanier v. Nunnally & Co., 128 Ga. 358, 57 S.E. 689 (1907).

- In cases of fraud or forgery, the decree registering title in the name of an applicant for registration is not a bar to a proceeding by the true owner to set aside such registration, if he moves in seven years. Rock Run Iron Co. v. Miller, 156 Ga. 136, 118 S.E. 670 (1923).

Mistake of Fact

Allegations of mistake of fact constitute cause of action to set aside judgment.

- Where, due to a mistake of fact unmixed with negligence, the condemnation proceeding for a public road was conducted throughout upon the theory that the road would be paved at approximately grade level, thus improving rather than damaging the remaining abutting property, and there was nothing to indicate that a fill of from 25 to 40 feet would be made in front of the remaining property which would damage it in the amount of approximately $20,000.00, a petition in equity, alleging these facts and alleging that the mistake prevented the owners from proving this consequential damage, alleged a cause of action to set aside the award and the judgment of condemnation and to recover the full damages. Whipple v. County of Houston, 214 Ga. 532, 105 S.E.2d 898 (1958).

Acceptance of disqualified jurors, due to the fact that they failed to report their relationship to plaintiff, amounts to such a mistake as will authorize a court of equity to set aside the verdict rendered in the law court and order a new trial. Gulf Ref. Co. v. Miller, 151 Ga. 721, 108 S.E. 25 (1921).

Duress

Allegations of duress as acceptable basis to set judgment aside.

- A party who has been prevented by duress from defending a suit against him may be relieved from the judgment. Hirsch v. Collier, 104 Ga. App. 271, 121 S.E.2d 318 (1961).

Ignorance Generally

Ignorance insufficient as basis to set judgment aside.

- A judgment will not be set aside in a court of equity on the ground that the defendant had a good defense of which he was entirely ignorant, unless it appears that his ignorance of such defense and his failure to assert it were unmixed with any fault or negligence on his part. W.T. Rawleigh Co. v. Seagraves, 178 Ga. 459, 173 S.E. 167 (1934).

A person who, through ignorance, allows a judgment to go against him, cannot afterwards have it set aside, even on the ground of fraud, if he himself has not exercised ordinary diligence in the premises. Hoke v. Walraven, 57 Ga. App. 106, 194 S.E. 610 (1937).

A court will not relieve against a judgment at law, unless the defendant in the judgment can show he had a good defense of which he was entirely ignorant while the suit at law was pending against him; or unless he was prevented from availing himself of his defense, by fraud, or accident, or the act of the adverse party, unmixed with negligence, or fault on his part. Felker v. Johnson, 189 Ga. 797, 7 S.E.2d 668 (1940).

Failure to Present Meritorious Defense

Presentation of meritorious defense required.

- Where petition fails to allege that petitioner had filed a meritorious defense to the case in which judgment was rendered against him in the justice court, a court will not interfere to set aside such judgment. Dorsey v. Griffin, 173 Ga. 802, 161 S.E. 601 (1931).

When no defense was offered, equity will not grant relief. Cohen v. Meador, 137 Ga. 551, 73 S.E. 749 (1912); Garrett v. Thornton, 157 Ga. 487, 121 S.E. 820 (1924).

When defendant negligently fails to make his defense, equity will not grant any relief. Cleckley v. Beall, Spears & Co., 37 Ga. 583 (1868); Redwine v. McAfee, 101 Ga. 701, 29 S.E. 428 (1897); Graham v. Graham, 137 Ga. 668, 74 S.E. 426 (1912).

Two things are required to constitute a meritorious bill in equity to set aside a judgment rendered in a court having jurisdiction on account of accident, mistake or fraud: first, that the complainant had a good defense to the action at law; and secondly, that the failure to make that defense there was owing, not to any negligence or fault in the complainant, but to fault of the defendants or their attorney. Russell v. Hoge, 217 Ga. 814, 125 S.E.2d 648 (1962).

- In equitable proceedings to set aside a judgment rendered in a court of law on account of accident, mistake, or fraud, the plaintiff is required to set out a meritorious defense to the action in which he seeks to set aside the judgment. This does not mean that, in a direct equitable proceeding to set aside a judgment of a court of ordinary or a court of law on the ground that such court or courts had no jurisdiction of the subject matter or of the person, and that said judgment is void, it is necessary to plead a meritorious defense. Foster v. Foster, 207 Ga. 519, 63 S.E.2d 318 (1951).

Mere failure to make a defense affords no grounds to set aside an award. Tinsley v. Maddox, 176 Ga. 471, 168 S.E. 297 (1933).

A judgment obtained against an executor cannot be set aside in equity by legatees on ground that there was a good defense which executor failed to set up, unless it be also shown that there was accident, mistake, fraud, or corrupt complicity between executor and plaintiff. Tinsley v. Maddox, 176 Ga. 471, 168 S.E. 297 (1933).

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 he was being sued is not sufficient ground to set aside the judgment, the opposite party having complied with the law as to service. Milam v. Busey, 96 Ga. App. 88, 99 S.E.2d 325 (1957).

- A judgment of a city court will not be set aside merely because the defendant failed to plead his equitable defenses thereto. Gentle v. Atlas Sav. & Loan Ass'n, 105 Ga. 406, 31 S.E. 544 (1898).

- Plaintiff must prove that he exercised due diligence, and the manner that his omission to assert his defense occurred. Simmons v. Martin, 53 Ga. 620 (1875).

Plaintiff must prove that he has a good defense. Clark v. Ramsey, 143 Ga. 729, 85 S.E. 869 (1915).

RESEARCH REFERENCES

Am. Jur. 2d.

- 27 Am. Jur. 2d, Equity, §§ 224, 244, 251.

- 31 C.J.S., Equity, § 622 et seq.

- Setting aside default judgment for failure of statutory agent on whom process was served to notify defendant, 20 A.L.R.2d 1179.

Right of successful party to have judgment in his favor vacated or set aside on grounds of mistake, inadvertence, excusable neglect, or the like, 40 A.L.R.2d 1127.

Appealability of order vacating, or refusing to vacate, approval of settlement of infant's tort claim, 77 A.L.R.2d 801.

Consent as ground of vacating judgment, or granting new trial, in civil case, after expiration of term or time prescribed by statute or rules of court, 3 A.L.R.3d 1191.

Opening default or default judgment claimed to have been obtained because of attorney's mistake as to time or place of appearance, trial, or filing of necessary papers, 21 A.L.R.3d 1255.

Liability insurer's right to open or set aside, or contest matters relating to merits of, judgment against insured, entered in action in which insurer did not appear or defend, 27 A.L.R.3d 350.

Fraud in obtaining or maintaining default judgment as ground for vacating or setting aside in state courts, 78 A.L.R.3d 150.

Power of successor judge taking office during term time to vacate, set aside, or annul judgment entered by his or her predecessor, 51 A.L.R.5th 747.