Dobbins v. Dupree , 36 Ga. 108 ( 1867 )

Harris, J.

A question of practice under the rules of the Superior Courts is made by the bill of exceptions, which we do not find it necessary to decide now. Of this question so made, that is as to which party in this case belonged the right to open and conclude the argument, it may not be inappropriate, however, to say that it could only have arisen in this case from the form pursued by the petitioner below, in calling on the 'other party to show cause why the judgment in favor of that party against the petitioner should not be vacated and set aside for want of legal service, etc. If strict rule had been adhered to, it would have been difficult to deny to the party called on to show cause the opening and conclusion, indeed from responding to the call; but looking to the end sought to be attained, and thinking that the proceeding to accomplish the purpose of petitioner should have been a simple motion setting forth the grounds upon which the Court was asked to vacate the judgment, accompanied by notice in writing .thereof to the opposite party, it is believed that as to the right of the movant, on a motion so framed and addressed to the Court, that there could not have been a doubt that the onus was on him, to open and conclude. If this question should again arise, we will then consider it carefully, and by a decision endeavor to settle a matter made embarrassing most always by the form adopted.

1. The verdict on the issue made upon the petition of Dupree is alleged to be contrary to and against the weight of evidence. We are of that opinion. There is no testimony positive or circumstantial denying the authority of Cook, the attorney at law, to acknowledge service of the declaration against Doyal principal and Dupree security for Dupree, or to confess judgment for him, except the testimony of Dupree himself. Nor can we infer from any fact in the case the slightest thing corroborative of his denial of having given authority to Cook to represent him.

The testimony of Dupree as to occurrences before suit brought, is contradicted by Dobbins, who seems to have no personal interest in the judgment, (it being founded on a note due to some orphans,) and whose credibility, therefore, cannot be affected by interest.

As to the authority to acknowledge service of the writ and to confess judgment, Cook asserts that during the years 1861 and 1862 (it was in April, 1861, service was acknowledged, and judgment confessed in November, 1862), Doyal & Cook were the sole attorneys at law of Dupree — that the acknowledgment of service by him was with the understanding that he was authorized to make it by Dupree; that he never acknowledged service or confessed judgment, he thinks, without authority; does not think that he ever acknowledged service for any one as a favor without authority, and don’t think he ever saw other attorneys do so. Now this is fully as definite as the testimony of Dupree, but when taken in connexion with Dobbins’, as also the suit in the case of Sloan and Oat-man, which was vigorously defended according yto Colonel Nunnally’s recollection, and confession of judgment by Doyal & Cook in that case during the February term just before the acknowledgment of service of the writ in favor of Dobbins : it is difficult, indeed impossible, to avoid a strong conviction that Cook had authority to acknowledge service for Dupree, as he clearly had for Doyal, his partner, absent in military service. Dupree, secured by mortgage from Doyal, was probably in consequence thereof careless; the testimony shows his memory to be at fault in several particulars, which detract from his weight and adds force to the representations of Cook. Nor is the fact that Doyal, the principal debtor— and in the army, too — knew of this judgment some time in 1862, whilst Dupree, at home in the country, does not hear of it until February, 1866, without significance. It seems passing strange that a security with a mortgage on negroes, his principal being embarrassed in his circumstances, should sit still, not a word uttered by him, not an enquiry made as to the note on which he was a security, and the negroes made free as early as May, 1865, and he hears nothing of the judgment against him till February, 1866. We find nothing in the facts contained in the record, nor do we see the slightest thing in the conduct of Dupree to entitle him to have the judgment against him set aside as void.

2. A more dangerous doctrine to the interests of society we cannot well conceive than that insisted on, viz: that a judgment regularly entered up, upon an acknowledgment of service of the writ and confession by an attorney at law, can be set aside and declared void upon the mere unsupported testimony of the party against whom the judgment is rendered.

Judgments thus rendered, and which have gone to record, should not be vacated but upon the dearest and most decisive proof that an attorney at law acted without any authority whatever in the case from the party he represented. .

3. Again, there is another view, which has had great influence in conducting us to the conclusions we have arrived. It is a well known fact, that for forty years past, neither the laws of the State nor the rules of Court required what was previously customary — the production and filing in the Clerk’s office of a written warrant or authority to an attorney at law, to enable him to appear and represent a party litigant. From this alteration in practice, the Courts have necessarily acted upon the presumption that every attorney at law representing a party was duly authorized; and this presumption derives great strength from the statutory provision for the punishment of any one representing him as an attorney at law in the course of a suit or proceeding in Court, whereby the party so represented suffered loss or injury, when such attorney at law was not authorized.

Besides this criminal liability, there exists a civil liability to damages against any unauthorized attorney at law for any loss or injury occasioned by his representation of a person who gave him no authority. By the Code, another safeguard has been provided for parties litigant: that is, by punishing as for a contempt the attorney at law who represents a party without authority, in a fine not less than $500.00.

In awarding a new trial, it seems but just and equitable that Mr. Dobbins should remit in writing on the judgment and execution the full amount of usurious interest which he admits in his testimony infects the note or notes on which the judgment is founded; that is to say, all interest over and above seven per cent.

Judgment reversed and new trial ordered.