Crim v. Crawford

47 Ga. 628 | Ga. | 1873

Warner, Chief Justice.

This was a motion made in the Court below to set aside a judgment by the defendant therein. The defendant first made a motion to open the judgment, so as to take the benefit of the Relief Act of 1868, which being overruled by the Court, the defendant then moved to set aside (he judgment on the ground that he had never been served with the petition and process on which the judgment was founded. The plaintiff then moved to dismiss defendant’s last motion, on the ground that be was estopped from making it. The Court held that the defendant was estopped from making that motion, because he had made the prior motion to open the judgment under the provisions of the Relief Act of 1868, and dismissed defendant’s motion, to which he excepted.

In our judgment, it was error in the Court, in dismissing the defendant’s second motion, on the ground that he was estopped from making it on the statement of facts contained in the record. Estoppels are not generally favored by the law, because the truth is excluded thereby. The fact that the defendant made the motion to open the judgment, to take the benefit of the Relief Act, would be evidence to be considered on the trial of the issue, as to whether he had been served with process-in the original suit, but it did not estop him from showing that fact, if he could do so, and we think he should have been allowed the opportunity to have proved the truth of the ease.

Let the judgment of the Court below be reversed.