Georgia Motion to Set Aside a Judgment

Introduction

Key Things to Know

1. 1

   Georgia's term is a motion to set aside (or a motion for new trial). Under O.C.G.A. 9-11-60(b), judgments may be attacked by motion only in the court of rendition, the court that entered the judgment. The exception is a judgment void on its face, which 9-11-60(a) says may be attacked in any court by any person.

2. 2

   The grounds in 9-11-60(d) are: lack of jurisdiction over the person or the subject matter; fraud, accident, or mistake or the acts of the adverse party, unmixed with the negligence or fault of the movant; or a nonamendable defect on the face of the record or pleadings. Failure to state a claim is not enough for that last ground; the pleadings must affirmatively show no claim in fact existed. The court decides whether a ground is shown.

3. 3

   Under 9-11-60(f), every motion to set aside other than one attacking a void judgment must be brought within three years from entry of the judgment. A judgment void for lack of jurisdiction of the person or subject matter may be attacked at any time. Under 9-11-60(g), clerical mistakes in judgments, orders or other parts of the record may be corrected by the court at any time.

4. 4

   Under 9-11-62(a), no execution may issue and no enforcement proceedings may be taken until 10 days after a judgment's entry, except that for a default judgment, execution may issue and enforcement proceedings may be taken at any time after entry. A motion for new trial acts as supersedeas unless the court orders otherwise, and the court may require a bond. Do not count on a motion to set aside to halt enforcement by itself; ask the court for a stay.

5. 5

   Reasonable notice must be given to the parties on the motion (9-11-60(f)). If the motion cannot be served like any other motion, it may be served by any means by which an original complaint may be legally served.

6. 6

   In magistrate court, 15-10-43(g) allows relief from a judgment under the same circumstances as in the state court, by a written motion setting forth the issues with reasonable specificity, and the court may assess costs as seem just. A complaint in equity to set aside a judgment is prohibited by 9-11-60(e), but 15-10-43(h) allows one against a magistrate court judgment under the same circumstances as a complaint to set aside a judgment in a court of record.

7. 7

   If the judgment was entered by default, also see the Georgia set-aside-default page at /legal-document/set-aside-default/georgia.

Georgia Requirements for Motion to Vacate

• Court of Rendition

  O.C.G.A. 9-11-60(b): a judgment may be attacked by motion for new trial or motion to set aside, and by motion only in the court that rendered it. A judgment void on its face may be attacked in any court (9-11-60(a)).

• Listed Grounds

  O.C.G.A. 9-11-60(d): lack of jurisdiction over the person or subject matter; fraud, accident, or mistake or acts of the adverse party unmixed with the movant's negligence or fault; or a nonamendable defect on the face of the record or pleadings.

• Three-Year Limit

  O.C.G.A. 9-11-60(f): motions to set aside must be brought within three years from entry of the judgment, except that a judgment void for lack of jurisdiction of the person or subject matter may be attacked at any time.

• Notice and Service

  O.C.G.A. 9-11-60(f): reasonable notice must be given to the parties. If the motion cannot be served as any other motion, it may be served by any means by which an original complaint may be legally served.

• Stays and Execution

  O.C.G.A. 9-11-62(a): no execution until 10 days after entry, except default judgments, on which execution may issue at any time after entry. Under 9-11-62(b), a motion for new trial acts as supersedeas unless otherwise ordered by the court, and the court may condition it on bond with good security.

• Magistrate Court Relief

  O.C.G.A. 15-10-43(g)-(h): relief under the same circumstances as the state court, by written motion stating the issues with reasonable specificity; costs may be assessed. 9-11-60(e) prohibits a complaint in equity to set aside a judgment; 15-10-43(h) allows one against a magistrate court judgment under the same circumstances as in a court of record.

• Ground and Timeliness Statement

  Name the 9-11-60(d) subsection relied on, the facts supporting it, the date the judgment was entered, and why the motion is within three years or attacks a void judgment.