Felker v. Johnson

7 S.E.2d 668 | Ga. | 1940

1. A defendant in execution may not by affidavit of illegality make the defense of payment of the debt, but only the payment of the execution itself.

2. Nor can such defendant, after judgment, for the first time question the authority of attorneys who appeared on behalf of the plaintiff.

3. An alleged agreement by the defendant with one of the attorneys for the plaintiff, made before judgment, that the suit would be dismissed, is no ground for setting aside the judgment or arresting the execution, where it appears that the defendant appeared at the trial and defended against the action.

4. "Upon the loss of any original petition, answer, declaration, plea, bill of indictment, special presentment, or other office paper, a copy may be established instanter on motion." Code, § 63-201.

5. "Appearance and pleading shall be a waiver of all irregularities of the process, or of the absence of process, and the service thereof." Code, § 81-209.

6. "A court of equity will not relieve against a judgment at law, unless the defendant in the judgment can show he had a good defence of which he was entirely ignorant while the suit at law was pending against him; or unless he was prevented from availing himself of his defence, by fraud, or accident, or the act of the adverse party, unmixed with negligence, or fault on his part." Robbins v. Mount, 3 Ga. 74; Mobley v. Mobley, 9 Ga. 247; Stroup v. Sullivan, 2 Ga. 275 (46 Am. D. 389); Kenan v. Miller, 2 Ga. 325; Bellamy v. Woodson, 4 Ga. 175 (48 Am. D. 221); Cleckley v. Beall, 37 Ga. 583; Turner v. McCarter, 42 Ga. 491; Augusta Mutual Loan Association v. McAndrew, 63 Ga. 490; Smith v. Phinizy, 71 Ga. 641; Latimer v. Irish American Bank, 119 Ga. 887 (47 S.E. 322).

7. "Errors in an advertisement of property levied on can not properly be made the ground of an affidavit of illegality, but the party suffering thereby will be remitted to his remedy against the officer."

8. The filing of a bill of exceptions operates as a supersedeas only from the time when the bond is given and costs paid, provided this be done within ten days.

9. The allegations of the petition as to illegality of a judgment taken on a supersedeas bond are too vague and indefinite to raise any question for decision.

10. The motion for ten per cent. damages, for prosecution of writ of error for delay only, is allowed.

No. 12986. FEBRUARY 14, 1940. REHEARING DENIED MARCH 15, 1940. J. H. Felker filed what he denominated an "affidavit of illegality and equitable proceeding" seeking to arrest enforcement of an execution against him. The petition is in substance as follows: In paragraph 1 it is alleged that "defendant does not owe plaintiff Johnson a penny, having settled with him in full; and that he does not owe the alleged counsel Roberts Roberts anything." (The relevancy of the latter allegation is not clear, since it does not appear that Roberts Roberts, who appear to represent Johnson, claim any indebtedness against defendant, or that the execution is proceeding in their behalf for attorney's fees in obtaining the judgment under the Code, § 9-613.) In paragraph 2 it is charged that "said attorneys do not represent said Johnson; that the latter has sworn that he did not employ them or Orrin Roberts in said case vs. petitioner," and demand is made that evidence in writing be produced "that they are Johnson's attorneys," on failure of which that their names be stricken from the docket and the levy dismissed. In paragraphs 3 and 4 it is alleged that "Brown and Randolph had abandoned the old case in the city court of Monroe; that Johnson had abandoned it, . . and said Orrin Roberts had stricken the case on the docket of the superior court;" that after said dismissal "Roberts re-entered it on the docket in his own handwriting for retrial; that this was done fraudulently and maliciously by said Orrin Roberts, because deponent had been employed to sue him, because he did sue him and garnishee his supposed creditors." In paragraphs 5, 6, 7, and 8 it is alleged "that at the trial of the case upon which the alleged judgment and fi. fa. is based an alleged copy of the pleadings were produced without an order of the court and without any notice of the application for the order, and defendant was forced to trial after he had asked for time to see if the copies were correct, but was refused;" that after the trial "James Roberts . . handed him . . an alleged copy of the judgment which caused an interrogation mark to or in deponent's mind; that on investigation petitioner found that a mere order without any affidavit was made to secure it, and without any notice for it an order was taken establishing the petition and answer; and that there was no process attached to the same; that deponent did not know these facts until after the trial;" that the alleged copy of the petition is not a correct copy, "in that the petition is not signed as set out in said copy," and "neither the name of Orrin Roberts singly or his firm Roberts Roberts appear as counsel thereon." In paragraph 9 it is alleged that "on the sale day of the sheriff of other property of deponent, after said Orrin Roberts and his firm had received notice of the fact that a bill of exceptions had been obtained and filed with the clerk of the court," and "knew that ten days was allowed deponent to pay the costs and give the bond, the said Orrin Roberts had the sheriff to sell a portion of the land then advertised, when he knew that filing of the bill of exceptions was a supersedeas; and bid off the same in the name of Steve R. Johnson, without any authority of law." In paragraph 10 it is alleged that "after the remittitur was received by the clerk of the court on the decision of the Court of Appeals," Johnson took judgment against petitioner as principal, and C. D. Ford and H. B. Williamson as sureties, for the alleged balance of principal, interest, and costs, although petitioner called his attention to decisions of the Supreme Court to the effect that he was entitled, "on a mere law question like that involved in the bill of exceptions," only to judgment for costs. The allegations of paragraph 11 are wholly irrelevant.

In paragraph 13 it is alleged that "in the advertisement pending, petitioner shows that the same is not advertised according to law; that the advertising fee has not been paid according to the rule of the sheriff and the law, the rule requiring it paid in advance, and the present advertisement will not have run the four required weeks from the first insertion in the Tribune until the day of sale as required by law." In paragraph 14 it is alleged that the advertisement describes the property levied on as being on Washington Street in the City of Monroe, "adjoining lot of land of Steve R. Johnson, when as a matter of law and fact he has not bought any lot, and has no title to any lot; the sale at which it is alleged or claimed that he owns or has bought any lot refers to the sale or alleged sale that took place as heretofore mentioned, which sale was absolutely null and void, as a supersedeas was then on and vs. said sale by the filing of the bill of exceptions." Paragraph 15 in substance is the same as paragraph 10. In paragraph 16 it is alleged that "the first levy has not been disposed of by entry of the sheriff or otherwise legally, and this is contrary to law and voids the fi. fa. and the levy under which he endeavors to sell other property, and that the property first levied on illegally, pending supersedeas, was and is more than sufficient, under a fair and legal sale, to more than pay the alleged illegal debt." Paragraph 17 is as follows: "And petitioner further shows that if he did have authority to place said case on the calendar, as counsel for plaintiff Johnson, and then strike the same, and then re-enter it on the docket for trial and not for striking, then this act creates an estoppel on his part; and if he really represented Johnson as attorney, this procedure also estops his client; and petitioner pleads this procedure as charged as estoppel, because the time for striking on one docket and re-entering on the other is more than six months allowed by law." In paragraph 18 it is alleged that "section 6165 of the Code, of the filing of bill of exceptions and supersedeas, such as that in the instant case, gives 10 days to the party appealing, from the time of filing the same with the clerk of the court, to give bond and pay the costs; that the bill of exceptions was filed before the sale, and the costs paid and the bond given before the expiration of the time allowed by statute to pay costs and give bond; defendant did pay the costs and did give the bond with C. D. Ford and Hugh L. Williamson as sureties, and the statute created a supersedeas, . . that the sale taking place after the filing of the bill of exceptions and before the expiration of the time for payment of costs and making bond rendered the alleged sale a bogus and void sale. . . Your petitioner also shows that these illegal and void proceedings has left two instead of one execution vs. him, amounting to $400 or more." Paragraph 19 alleges that "the procedure as herein outlined" violates the due-process clause of the State and Federal constitutions. Paragraph 20 alleges that the judgment on the remittitur "against said C. D. Ford and H. B. Williamson, sureties," is also a violation of the due-process clauses. In paragraph 21 it is alleged "that the only issue in said bill of exceptions and carried to the appellate courts was whether or not it was error to sustain a demurrer to an amendment, before the remittitur from the appellate court was made the judgment of the trial court, as apparent by judicial cognizance thereof," and that in such case the only liability of the sureties "on their bond" was for costs in taking said case to the Supreme Court. Paragraph 22 sets out that all the acts complained of violate the due-process clauses.

We have quoted thus at length from the proceeding, because from its confusion it does not appear possible to characterize it by mere reference. Upon inspection of the records of this court it appears that suit was filed in 1908, and that a verdict and judgment were obtained in 1935. The defendant in that suit (plaintiff here) prosecuted a writ of error to the Court of Appeals, and the judgment was affirmed. This court denied an application for certiorari, in April, 1937. Thereafter, and before the remittitur of the Court of Appeals was made the judgment of the trial court, the defendant attempted to amend his answer, setting up various defenses to the cause of action. This amendment was disallowed, and another writ of error was prosecuted to the Court of Appeals, complaining of this ruling. In November, 1937, the Court of Appeals affirmed the judgment of the trial court, and in April, 1938, this court denied an application for certiorari. In December, 1938, the present petition was filed. 1. The allegation to the effect that the petitioner is not indebted to Johnson, "having settled with him in full," is defective, because it does not appear when the alleged settlement was made. The petitioner can not, after judgment, set up a settlement of the cause of action, made before rendition of the judgment. Code, §§ 39-1009, 110-501. Terry v.Bank of Americus, 77 Ga. 528 (2) (3 S.E. 154). See Parker v. Rosenheim, 97 Ga. 769 (25 S.E. 763). Compare Griffin v.Frick, 97 Ga. 219 (3) (23 S.E. 833); Register v. SouthernStates Phosphate c. Co., 157 Ga. 561 (4) (122 S.E. 323). If the judgment had in fact been paid or otherwise settled, this should have been distinctly and unequivocally alleged. See Griffin v. Frick, Terry v. Bankof Americus, supra.

2. It is alleged that "said attorneys (Roberts Roberts) do not represent said Johnson; that the latter has sworn that he did not employ them or Orrin Roberts in said case vs. petitioner," and demand is made that they produce written evidence "that they are Johnson's attorneys." Since it is not necessary that a party in whose favor a judgment has been regularly entered be represented by counsel at the time the execution issued on the judgment is levied, we assume that it was the intention of the petitioner to charge that the attorneys who purported to represent the plaintiff at the trial which resulted in the rendition of the judgment were not in fact employed by the plaintiff. We find no case in this State wherein a defendant has, after judgment, questioned the authority of the attorneys who appeared in the trial on behalf of the plaintiff. It seems clear, however, that this is an effort to set up a matter which should have been inquired into at the trial. The petitioner could have required the attorneys purporting to represent the plaintiff at the trial to produce or prove the authority under which they appeared (Code, § 9-604), and upon their failure to do so a motion to dismiss the case would have been in order. The case of Walker v. Sutherland, 136 Or. 355 (299 P. 335), was a proceeding by a defendant to set aside a judgment for a reason identical with that alleged here. The court said: "In every case cited by able counsel, where the question was raised after judgment, it was by the party for whom an unauthorized attorney appeared, and no case has been called to our attention, nor have we been able to find any, where the court interfered with a judgment against a party who was properly represented by counsel, on the ground that the judgment creditor had been represented by unauthorized counsel. The general rule seems to be that at any state of the proceedings, in any case, when it is properly suggested to the court that a party plaintiff is represented by unauthorized counsel, the court may call such counsel to show his authority; and if he is unauthorized, the court may suspend further proceedings or dismiss the suit or action so far as such party is concerned. . . If, however, the cause has proceeded to final judgment without such question being raised, then only the party who was not properly represented may take advantage of such unauthorized appearance." Should we concede that the plaintiff is entitled to make this point after judgment, we would be forced to hold that it is unfounded, for in fact it appears that the plaintiff appeared in person and testified at the trial wherein the judgment was obtained. While as a general rule a party is not bound by the acts of an attorney who purports to represent him, but without being employed so to do (Code, § 9-603; Anderson v. Crawford, 147 Ga. 455, 94 S.E. 574, L.R.A. 1918B, 894), and need not accept any benefits to himself as a result of such unauthorized appearance, he may do so by ratifying the attorney's acts, as in other cases of agency. Code, § 4-303.

3. While, as above stated, the petitioner charged that the attorneys who purported to represent the plaintiff were not employed so to do, we find him also seeking to avail himself of an alleged agreement with one of the attorneys that the suit would be dismissed. It appears, however, from the petitioner's own allegations that he was present at the trial and defended the action. The complaint is without merit.

4-6. These headnotes need no elaboration.

7. "Errors in an advertisement of property levied on can not properly be made the ground of an affidavit of illegality, but the party suffering thereby will be remitted to his remedy against the officer." Fitzgerald Granitoid Co. v. AlphaPortland Cement Co., 15 Ga. App. 174 (3) (82 S.E. 774);Jeffries v. Bartlett, 75 Ga. 230 (3); Georgia Northern Ry.Co. v. Home Mercantile Co., 17 Ga. App. 755 (3) (88 S.E. 413); Georgia Northern Ry. Co. v. Cone, 17 Ga. App. 786 (88 S.E. 701); Walker v. Tate, 47 Ga. App. 340 (170 S.E. 403); Treadwell v. Beauchamp, 82 Ga. 736 (9 S.E. 1040);Mulling v. Bank of Cobbtown, 36 Ga. App. 55 (2, 3) (135 S.E. 232). See Conley v. Redwine, 109 Ga. 640, 646 (35 S.E. 92, 77 Am. St. Rep. 398); Marshall v. Armour Fertilizer Works,24 Ga. App. 402 (2) (100 S.E. 766). This being true, the allegations to the effect that the advertising fees had not been paid, that the property is not correctly described in the advertisement, and that the advertisement will not have run the required time before sale day, present no reason for arresting the judgment.

8. We gather from the allegations of the petition that there was a previous sale of certain property of the petitioner under the judgment. He seeks to have this sale set aside on the ground that the sale had been superseded. Neither the date of the sale, the description of the property, the execution and entry of levy, nor the sheriff's deed is set out or alleged. It is in fact difficult to make any intelligent ruling as to the validity of the sale, under the facts alleged. Apparently the sale took place after the filing of the bill of exceptions complaining of the refusal to allow the petitioner to amend his answer. As a general rule, in a civil case the filing of a bill of exceptions operates as a supersedeas of the judgment, execution, or decree of the trial court, when the plaintiff in error, on or before the filing of the bill of exceptions, or within ten days thereafter, shall pay all costs and give bond, with good security, payable to the opposite party, conditioned for the payment of the eventual condemnation-money and all subsequent costs, which bond shall be attested and approved by the clerk; or in lieu thereof shall file a pauper affidavit. Code, § 6-1002. Under that section supersedeas is a matter of right, and is effectuated upon compliance with the terms set out therein, without any order of the court. Wheeler v. Wheeler, 139 Ga. 608 (77 S.E. 817). "The general rule is that a supersedeas suspends all further proceedings in the suit in which the judgment superseded is rendered, such as are based upon and relate to the carrying into effect of that judgment. Under the general rule the supersedeas deprives the trial court rendering the judgment of jurisdiction to take further proceedings towards its enforcement." Barnett v. Strain, 153 Ga. 43 (111 S.E. 574); Town of Fairburn v.Brantley, 161 Ga. 199 (130 S.E. 67); Campbell v.Gormley, 185 Ga. 65 (194 S.E. 177). In a paragraph 18 of the petition it is alleged that "Section 6165 of the Code, of the filing of bill of exceptions and supersedeas, such as that in the instant case, gives 10 days to the party appealing, from the time of filing the same with the clerk of the court, to give bond and pay the costs; that the bill of exceptions was filed before the sale, and the costs paid and the bond given before theexpiration of the time allowed by statute to pay costs and givebond; defendant did pay the costs and did give bond . . and the statute created a supersedeas, . . that the sale taking place after the filing of the bill of exceptions and before the expiration of the time for payment of costs and making bond rendered the sale of bogus and void sale."

Before the act of 1917 (Ga. L. 1917, p. 63) in order for a bill of exceptions to operate as a supersedeas the statute required that the costs should be paid and the bond given before or at the time of the filing of the bill of exceptions. In conformity with this requirement of the statute, this court held, in Parker-HenselEngineering Co. v. Schuler, 133 Ga. 696 (66 S.E. 800), andWheeler v. Wheeler, supra, that the payment of costs and execution of bond, or filing of a pauper affidavit, after the day on which the bill of exceptions was filed, did not operate as a supersedeas, and accordingly did not prevent the plaintiff from thereafter taking steps to enforce the judgment. Shortly after the decision in the Wheeler case, the General Assembly amended the statute (Acts 1917, supra) so as to give the excepting party ten days after the filing of the bill of exceptions to pay the costs and give the bond, or file a pauper's affidavit. While it is alleged that the sale was made within ten days after the filing of the bill of exceptions, it is not alleged that the bond was given and the costs paid before the sale; in fact the inference is clearly to the contrary. The petitioner's contention, reduced to its final analysis, is that a bill of exceptions operates as a supersedeas from the date it is filed, provided the costs are paid and the bond is given within ten days. Clearly this was not the purpose of the act of 1917. That act merely gave a plaintiff in error the right to supersede a judgment by giving bond and paying costs within ten days from the date the bill of exceptions was filed; whereas formerly it was necessary to do this before or at the time the bill of exceptions was filed. The bill of exceptions supersedes only from the date that a supersedeas is perfected; that is, when the bond is given and the costs are paid, provided this is done within ten days. A supersedeas holds the case in statute quo from the time it becomes operative; it does not operate retroactively to undo what has previously been done under the judgment complained of. Mayorc. of Macon v. Shaw, 14 Ga. 162 (2); Taylor v. Gay,20 Ga. 77; Board of Commissioners of Burke County v. Wimberly,55 Ga. 570; Seamans v. King, 79 Ga. 611 (5 S.E. 53);Johns v. McBride, 28 Ga. App. 686 (112 S.E. 831). It follows from what has been said, that a sale of the petitioner's property within ten days after the filing of the bill of exceptions, but before the bond was given and the costs were paid, was valid, and the sale was not undone by the fact that a supersedeas was subsequently perfected.

9. Complaint is made of the judgment taken on the supersedeas bond. It is alleged that the plaintiff in the judgment took judgment for principal, interest, and costs, when "on a mere law question like that involved in the bill of exceptions" the liability was only for costs. The allegations of the petition in this connection are entirely too vague and indefinite to raise any question for decision. Neither the bond given nor the alleged judgment taken is attached to the petition. It does not appear whether the fi. fa. which has been levied on the property of petitioner is that issuing upon the original judgment or upon the alleged judgment taken on the bond.

10. The original petition upon which judgment was had against the plaintiff in the present proceeding was filed over thirty years ago. To whom the delay in bringing the case to trial may be attributed is not ascertainable. Judgment was finally entered, and the plaintiff sued out a writ of error to the Court of Appeals. There the judgment was affirmed, and this court denied a certiorari. Before the remittitur of the Court of Appeals was made the judgment of the lower court, the petitioner sought to amend his answer in the original suit. The judge refused to allow the amendment, and again a writ of error was taken to the Court of Appeals. The judgment was affirmed, and this court again denied a certiorari. In the present case petitioner sought, among other things, to arrest the execution, to set aside the judgment, and also to set aside a former sale. Some of the grounds taken are too frivolous to require special notice, and the rest are without substance. The allegations of the petition as a whole are vague, confusing, and unintelligible, as we believe will readily appear from a perusal of the petition, the substance of which is set out above. A motion has been made for assessment of damages for delay, under the Code, § 6-1801. The spectre of "the law's delay" is difficult enough in ordinary circumstances, with all the courts and the bar doing their best to dispatch and dispose of legal controversies. When courts are used to evade judgments, especially when the effort is made on frivolous grounds, after full opportunity has been had for fair adjudication, we think this provision in the nature of a penalty is properly invoked. The motion is therefore granted.

Judgment affirmed, with damages. All the Justices concur.