Cherry v. Moreton Rolleston, Jr. Living Trust
Cherry v. Moreton Rolleston, Jr. Living Trust
Opinion of the Court
John Randolph Cherry, as executor of the estate of Rebecca Wight Cherry Sims, appeals the trial court’s order vacating in part the trial court’s previous orders in an action by Moreton Rolleston, Jr. and Moreton Rolleston, Jr. Living Trust against Jacquelyn Barrett, as Sheriff of Fulton County. We reverse because the trial court’s modification of its previous order was made after the term of the court in which it was entered, was not the correction of a clerical mistake, and was not otherwise challenged in a manner permitted by OCGA § 9-11-60.
On January 6, 2005, Robert C. Koski, the President and CEO of Tunnelite, wrote a letter to the trial court in which he contended that the trial court had entered certain findings of fact and law in its May 2003 orders which were both erroneous and adverse to the interests of Tunnelite, a nonparty. In particular, Koski objected to the trial court’s finding that the Rolleston property “has been in custodia legis of the Fulton County Sheriff continuously since [July 1, 2002] and is immune to process from the federal court.” Koski claimed that the Sims estate had relied on these findings in separate litigation contesting Tunnelite’s right to collect funds it had recovered on its writ of execution with respect to the Rolleston property despite this court’s finding in Tunnelite, Inc. v. Estate of Sims
Cherry has appealed the February 28, 2005 order, contending that the trial court erred in vacating its May 2003 orders because the statutory requirements for setting aside a judgment pursuant to OCGA § 9-11-60 were not met.
OCGA § 9-11-60 (a) states: “A judgment void on its face may be attacked in any court by any person. In all other instances, judgments shall be subject to attack only by a direct proceeding brought for that purpose in one of the methods prescribed in this Code section.” OCGA § 9-11-60 provides the exclusive means for attacking a judgment.
Although the trial court found good cause to set aside the May 2003 orders under authority of OCGA § 9-11-60 (d), motions to set aside under this subsection must be brought by a party to the action and upon reasonable notice to the other parties.
The trial court has the inherent power during the same term of court at which a judgment is rendered to reverse, correct, revoke, modify, or vacate the judgment.
We are unable to conclude that the trial court’s vacation in part of the May 2003 orders was a correction of a clerical error. The trial court indicated in its February 28, 2005 order that it had intended to include “certain provisions designed to reasonably safeguard Tunnelite’s interests” in the May 2003 orders, but that the May 2003 orders, which were prepared for the trial court by counsel for the Sims estate, failed to include'these provisions. However, it is not obvious from the record that these provisions, undefined by the February 28, 2005 order, were omitted through clerical error, and no hearing was held on the issue of clerical omission. Furthermore, the February 28, 2005 order does not purport to be a correction of a clerical error but a setting aside of the May 2003 orders under authority of OCGA § 9-11-60 (d). Accordingly, we find that the trial court did not act to correct a clerical error, and as it was otherwise without authority to modify the May 2003 orders, the February 28, 2005 order is void.
Judgment reversed.
The order entered on May 19, 2003 was signed by the trial court on May 14, 2003, nunc pro tunc May 5,2003, and is sometimes referred to by the parties and the trial court as the May 14, 2003 order.
Tunnelite, Inc., Robert Koski, and Sandlease/Coasthouse Joint Venture have filed a motion in this court to intervene as of right in this case. As this is a matter for the trial court, we deny their motion to intervene. See Sta-Power Indus. v. Avant, 134 Ga. App. 952, 958 (3) (216 SE2d 897) (1975) (whether intervention application is timely and the showing sufficient is within the sound discretion of the trial court). Although Tunnelite, Inc. sometimes appears in the record as an intervenor in the style of this case, Cherry and Tunnelite agree that Tunnelite was never a party to the action.
266 Ga. App. 476 (597 SE2d 555) (2004).
Cherry has also filed motions both to supplement the record and to exclude certain exhibits from the record. Cherry’s motion to supplement is moot because the record has been supplemented with the requested material. The exhibits which Cherry has moved to exclude are attached to a transcript of a December 21, 2004 hearing before the trial court in a related civil action. The trial court refers to this hearing in its February 28, 2005 order, and Cherry requested the transcript he transmitted to this court as part of the record. Inasmuch as the exhibits appear to have been submitted to the trial court at the December 21,2004 hearing, we conclude the clerk properly included the exhibits in the transcript record transmitted to this court. Cherry’s motion to exclude is denied.
Henry v. Adair Realty Co., 141 Ga. App. 182, 184 (3) (233 SE2d 39) (1977).
(Citation and punctuation omitted.) Utica Mut. Ins. Co. v. Mitchell, 227 Ga. App. 830, 831-832 (490 SE2d 489) (1997).
Nicholson v. State, 261 Ga. 197, 199 (4) (403 SE2d 42) (1991) (jurisdiction of the subject matter does not mean simply jurisdiction of the case before the court, hut jurisdiction of the class of cases to which that particular case belongs).
See Colodny v. Krause, 141 Ga. App. 134, 135 (1) (232 SE2d 597) (1977) (“A judgment is not conclusive as to one who was not a party to the proceeding in which it was rendered, nor as to one over whom the court acquired no jurisdiction....”) (citations and punctuation omitted). Compare OCGA § 9-12-40.
See OCGA§ 9-11-60 (b). See also Moore v. Mack, 266 Ga. App. 847, 852 (1) (d) (598 SE2d 525) (2004).
See OCGA§ 9-11-60 (f). See also The Bootery, Inc. v. Cumberland Creek Properties, 271 Ga. 271, 274 (4) (517 SE2d 68) (1999) (OCGA§ 9-11-60 (d) does not authorize a nonparty to bring a motion to set aside).
Kirkley v. Jones, 250 Ga. App. 113, 114-115 (1) (550 SE2d 686) (2001).
Andrew L. Parks, Inc. v. Sun Trust Bank &c., 248 Ga. App. 846, 847 (545 SE2d 31) (2001).
The Superior Court of Fulton County has six two-month terms of court each year, with a new term beginning on the first Monday in January, March, May, July, September, and November. OCGA § 15-6-3 (3).
OCGA § 9-11-60 (g).
Cagle v. Dixon, 234 Ga. 698, 700 (217 SE2d 598) (1975).
Reference
- Full Case Name
- CHERRY v. MORETON ROLLESTON, JR. LIVING TRUST
- Cited By
- 3 cases
- Status
- Published