This in an action for modification of a final decree of alimony based on a mutual mistake of fact between the parties in the divorce and alimony action growing out of an oral agreement as to the alimony award in that the alimony to be awarded in the final decree was orally agreed upon, to be reduced to writing by appellee's attorney and thereafter he was to forward a copy of the final decree to counsel for appellant, and upon receipt of same it is alleged that it contained matter not agreed to orally. A motion to dismiss was filed and after a hearing the petition for modification was dismissed. Held:
The Civil Practice Act of 1966, as amended (Ga. L. 1966, pp. 609, 618, 622: Ga. L. 1967, pp. 226, 230, 231; Code Ann. 81A-107, 81A-112) controls this case. The appellee claimed that no relief could be granted in the motion to dismiss in that the equitable doctrine of laches because of the delay in moving to modify the judgment (five months) and the fact that at all times the applicant-appellant was represented by counsel would estop the applicant from objecting to the final order. Laches and estoppel being issues of fact, a mere showing of five months and representation by counsel would not defeat the claim, especially as it is averred the mutual mistake of counsel resulted in the erroneous written decree. Accordingly, the court erred in holding no claim for relief existed, and in dismissing the action. See William H. Benton, Co. v. Irvindale Dairies, 224 Ga. 780 (164 SE2d 819)
E. T. Hendon, Jr., for appellee.