McCarthy v. Holloway

The majority treats this as a suit in equity brought under Code Ann. § 81 A-160 (a) to set aside a judgment alleged to be void on its face. (It is not treated as a suit under § 81A-160(e) as the complainant has failed to show fraud, etc., unmixed with negligence or fault of the complainant.) In my view the complainant cannot sue in equity because he had an adequate remedy at law. He could have raised this issue in his motion for new trial, Code Ann. § 81A-155 (a), or his motion to set aside the default, and he could have appealed an adverse ruling. By failing to utilize the available remedy…