Harrell v. Williams

14 Ga. App. 171 | Ga. Ct. App. | 1914

Pottle, J.

1. Under the decision of this court in Harrell v. Williams, 11 6a. App. 552 (75 S. E. 554), the return of service made by the sheriff in this case was legal and binding, and the suit was properly brought against the complaining defendants in the county wherein it was instituted.

2. It appearing that the motion to'set aside the judgment was presented by attorneys at law claiming the right to represent the movants, the presumption that the attorneys had authority to represent the clients for whom they appeared is conclusive, in the absence of direct attack upon their authority made in a proceeding in which they are parties and have an opportunity to be heard. Moreover, the defendants having made a pauper affidavit, to bring before the Court of Appeals a judgment overruling their motion to vacate, are estopped from claiming that the attorneys were not authorized to file the motion in their behalf. Davant V. Carlton, 57 Ga. 490, Bigham v. Kistler, 114 Ga. 459 (40 S. E. 303).

Decided January 20, 1914.

Affidavit of illegality; .from city court of Douglas — Judge Lank-ford. July 21, 1913.

L. E. Heath, W. L. & Warren Grice, L. A. Whipple, for plaintiffs in error. Chastain & Henson, W. W. Bennett, contra.

3. It appearing that the defendants in the judgment which is attacked by the affidavits of illegality had notice of the return of service made by the sheriff, and it not appearing that this return was traversed at the first term after they had notice thereof, it was not erroneous to reject evidence tending to impeach the truth of the return and to show that the defendants were not in fact served. See Knight v. Jones, 63 Ga. 481; Lamb v. Dozier, 55 Ga. 677.

4. The court properly directed a verdict against the illegality.

Judgment affirmed.