LAW.coLAW.co

SHEPHERD v. EPPS

Court of Appeals of Georgia1986-06-18No. 72187
179 Ga. App. 685347 S.E.2d 289

Summary

Holding. The court adopted the rule that a civil action for damages based on alleged perjury committed in a prior case is not viable against either a witness or an opposing party in that case. The judgment was affirmed.

A plaintiff sued a witness for damages based on alleged perjury committed during the witness's testimony in an earlier civil case that the plaintiff had lost. The plaintiff argued that the witness's false testimony caused the adverse judgment and resulting damages. The trial court dismissed the case on summary judgment.

The court adopted a long-standing rule from other jurisdictions: a party cannot bring a civil damages action against a witness or opposing party for perjury committed in a prior lawsuit. The court explained that allowing such suits would undermine finality of judgments, multiply litigation, and intimidate witnesses. Georgia law supports this conclusion because a damages claim based on perjury amounts to an improper collateral attack on a judgment that is not void on its face. Instead, if perjury allegedly infected a judgment, the proper remedy is a direct attack on that judgment itself, not a separate tort action against the alleged perjurer.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Whether a party may sue for damages based on a witness's alleged perjury in a prior civil action
  • Whether a perjury-based damages claim constitutes an improper collateral attack on a prior judgment
  • The appropriate remedy for judgments allegedly infected by perjury

Procedural posture

The trial court granted the defendant's motion for summary judgment dismissing the perjury damages claim, and the appellant appealed that order.

Authorities cited

No cited authorities resolved to law.co cases yet.

Cited by (1)

Opinion

majority opinion

Carley, Judge.

Appellant instituted the instant tort action, seeking damages based upon appellee’s alleged commission of perjury while he was a witness in an earlier civil action wherein appellant was the losing party. See Shepherd v. Shepherd, 233 Ga. 228 (210 SE2d 731) (1974). Appellant contended that the alleged perjury resulted in the adverse decision in the previous action and that, therefore, appellee had caused him damages. The trial court granted appellee’s motion for summary judgment, from which order appellant now appeals.

1. The Georgia courts have apparently never dealt with the question of the viability of a claim for damages based upon the alleged commission of perjury in a previous civil action. Compare Williams v. Dykes, 170 Ga. App. 665 (317 SE2d 661) (1984). However, the rule in those jurisdictions which have addressed the issue is that such an action will not lie against either the previous party or a witness in the previous suit. See generally Annot., 54 ALR2d 1298 (1957); 60 Am Jur2d, Perjury, § 74, p. 1012. The reasons advanced for this rule are persuasive. “ The authorities . . . rest upon two grounds: (1) There [is] no precedent for such action ... (2) It “would overhale,” . . . the decision of the former case to which the plaintiff in the new action had been a party. We think there is a third reason, in that it wduld multiply and extend litigation if the matter could be re-examined by a new action between a party to the action and a witness therein; and, more than that, witnesses would be intimidated if their testimony is given under liability of themselves being subjected to the expense and annoyance of being sued by any party to the action to whom their testimony might not be agreeable. It would give great leverage to litigants to intimidate witnesses.’ ” Brewer v. Car. Coach Co., 116 SE2d 725, 727-728 (N. C. 1960).

In addition to being predicated upon persuasive reasons, this rule recognized in other jurisdictions is otherwise entirely consistent with the existing provisions of Georgia law. An action for damages based upon alleged perjury is in the nature of a collateral attack on the previous judgment. Under Georgia law, unless a judgment is void on its face, it may not be attacked collaterally. OCGA § 9-11-60 (a); Long v. Long, 117 Ga. App. 606 (2b) (161 SE2d 417) (1968). Since alleged perjury in a previous case would not render the judgment therein void on its face, it necessarily follows that that judgment should be subject only to a direct rather than a collateral attack. See generally Windsor Forest, Inc. v. Rocker, 121 Ga. App. 773 (175 SE2d 65) (1970); Prudential Timber &c. Co. v. Collins, 155 Ga. App. 492 (271 SE2d 43) (1980).

Accordingly, we find that the rule followed in other jurisdictions is a sound one, and we hereby expressly adopt it as the rule which will be followed in Georgia. Where a judgment has allegedly been infected by perjury, the remedy is the institution of a direct attack upon that judgment and not a civil action against the alleged perjurer. Thus, appellant has no viable claim and the trial court’s grant of summary judgment was not erroneous.

Decided June 18, 1986

Rehearing denied July 8, 1986

Joseph Weinberg, for appellant.

William D. Smith, for appellee.

2. Our holding in Division 1 renders appellant’s remaining enumeration of error moot.

Judgment affirmed.

McMurray, P. J., and Pope, J., concur.