Guerry v. Perryman

By the Court.

— Warner, J.

delivering the opinion.

When this bill was originally filed, it was demurred to by the defendants, and that demurrer was overruled. The question *17 now is, whether the overruling that demurrer had the effect to set aside and open the original decree rendered against Perry-man ? This bill is not, technically, a bill of review for error in law, apparent on the face of the decree, but is a bill in the nature of a bill of review.

Although the original bill against Perryman which is sought to be reviewed, was regularly served, as appears upon its face, yet, it is alleged that the entry of service v7as fraudulently procured, after Perryman had left the State. The allegation as to the fraudulent procurement of the entry of service, is an issuable fact, which must be determined by evidence outside of the record and decree.

[1.] When a bill is filed to review a decree for error in law, apparent on its face, a demurrer to such a bill presents an issue of law only for the judgment of the Court, and if the demurrer is overruled, the effect is, to set aside and open the decree; the facts, as the same appear on the face of the decree, being confessed by the demurrer, the judgment of the Court as to the existence of such error, is necessarily affirmed by such judgment overruling such demurrer.

[2.] The main ground upon which the complainants in this bill sought to reverse the original decree against Perryman, is, that he w’as never served ; that the entry of service, which is apparent on the face of the record and decree sought to be reviewed and set aside, was fraudulently placed there by the Sheriff, after Perryman had left the State. The complainants, however, contend, that notwithstanding this may be true ; yet, if it appears on the face of the decree, that there are errors in law apparent, which would be sufficient to open and vacate the decree, the judgment of the Court below was right. The complainants specify two grounds of error, which they say are apparent on thefface of the record and decree, sufficient to open and set it aside. We have been somewhat embarrassed, in the absence of the original record and decree, in which the proceedings were had against Perryman, and must be governed entirely by such parts thereof, as are set forth in the complainant’s bill nowr .before us. The first alleged apparent error is, that the decree was taken *18 at the second term of the Court, without any legal order, taking said bill as confessed against Perryman. Assuming ex gratia, that such an order was necessary, the effect of which would have been to place the defendant in default, yet, the order is not in the record, so that its illegality might be apparent to the Court.

The existence of an order is virtually admitted, but its not being a legal order, is the conclusion of the complainants. The order itself should have appeared on the face of the complainant’s bill, so that the Court might determine whether it was a legal order or not. A demurer does not admit conclusions of law. The second ground of alleged error apparent on the face of the record and decree is, that said decree demands satisfaction out of the private estate of Perryman, and not out of the estate of Jas. R. Lowry in his hands. It appears on the face of the complainant’s bill, that the verdict was found by the Jury against Perryman, as administrator on the estate of Jam.es Lowry, and that the decree entered upon said verdict was against Perryman in his individual capacity, and not as administrator. The/orma2 variance between the verdict of the Jury and the decree entered thereon, is a matter which can be remedied by an amendment, so as to make the decree conform to the verdict: in fact, the verdict of the Jury under our system of Equity practice, settles the rights of the parties;' the decree can only be éntered in conformity thereto.

[3.] Error in matter of form only, though apparent on the face of the decree, is not a sufficient ground for reversing the decree. Mitford’s Pleading, 67. Story’s Eq. Pleading, section 411. The main ground on which the complainants seek a reversal of the decree against Perryman being the fraud alleged in procuring the service of the original bill upon him, the demurrer to the bill of review was overruled on that ground, and not because there were errors in law apparent on the face of the decree. See Guerry and Wife vs. Durham, 11th Georgia Rep. 15.

We shall therefore reverse the judgment of the Court below, with directions to have the original decree against Perryman amended, if necessary, so as to conform to the verdict rendered against him as administrator.