Morris Construction Co. v. Randolph 163 Ga. 6

I-IlLt, J.

The petition as amended alleged a cause of action; and the court did not err in overruling the general and special demurrers to the petition as amended. See Civil Code (1910), §§ 4629, 4571; Hall v. Lockerman, 127 Ga. 537 (56 S. E. 759).

Judgment affirmed.

All the Justices concur, except Beck, P. J., who dissents.

*11Davie & Reid and Morris, Hawkins & Wallace, for plaintiff in error.

Ddgar B. Dunlap and Luther Roberts, contra.

Beck, P. J.,

dissenting. "A party can not successfully ask for relief in equity to set aside a judgment at law against him, on the ground that he failed or omitted to make a legal defense, unless he was prevented by fraud or accident, unmixed with any fraud or negligence by himself, from setting up such defense.” This ruling in the case of Bank of Doerun v. Fain, 148 Ga. 799 (98 S. E. 467), is but a restatement of the statute contained in sections 4584 and 5965 of the Civil Code; and the same principle has been stated in numerous other cases and applied to the facts *12of the particular case. In the present case it seems to me that it is clearly shown by the facts pleaded that the fraud charged against defendant in this case, if fraud at all is shown under the facts pleaded, was not unmixed with negligence on the part of petitioners. I will not say that gross negligence is shown upon their part, but clearly there was negligence, and that was sufficient to prevent their having the relief sought, under both of the sections of the Code which I have referred to above.