35 S.E.2d 258 | Ga. | 1945
1. No warrant of attorney is required in this State, and an acknowledgment of service by one as attorney for the defendant in the present case was prima facie authorized until the contrary appears.
(a) Such an acknowledgment estops the attorney from later contending that he acted without authority, and, where no counter showing is made on behalf of the defendant by someone not estopped that he did not in fact represent the defendant, the court did not err in ruling that the acknowledgment was authorized and binding upon the defendant.
2. The present "motion" to set aside two verdicts and a decree of divorce, and praying for the issuance of a rule nisi, was not based on any defect appearing on the face of the record, and, accordingly, was not in legal effect a motion to set aside a judgment. While, because of the allegations of fraud on the part of the plaintiff in the divorce action in failing to serve the defendant therein, the present pleading partakes somewhat of the nature of an independent proceeding in equity, though not precisely so because not returnable to the next ensuing term of court, it was fatally defective in that the essential process required by the Code, § 81-201, was not attached and no waiver of the requisite process appeared. Accordingly, the court erred in overruling the defendant's ground of demurrer which challenged the sufficiency of the petition in this respect, and all proceedings thereafter were nugatory.
Upon the filing of this "motion," the court issued a rule nisi, providing that a copy thereof, together with a copy of the "motion," "be served upon the respondent, James L. Jackson, by serving his attorney at law and of record, E. R. Smith, and that the said E. R. *718
Smith show cause before me in the courtroom of Berrien superior court on the 28 day of April, 1945, at 10 o'clock a. m. why said motion should not be granted and the verdicts and decree set aside, annulled, and declared void as prayed for in said petition." E. R. Smith, on April 13, 1945, acknowledged service in writing and agreed that the judge might sign the rule nisi at any time before the hearing. This acknowledgment was signed as "attorney for respondent, James L. Jackson." When the hearing came on, Smith filed a verified written response, alleging, among other things, the following: He had not been employed to represent the respondent, though he had acted as counsel for Jackson in his divorce action under employment by his mother. Smith's information was that she now resided in the State of California, but he did not know her address and had been unable to communicate with her. Jackson was in the armed services of the United States, and it was Smith's information that he was overseas. It would be necessary for Smith to get in touch with Jackson or his mother to ascertain whether or not Smith would be employed in the present proceeding and in order to properly prepare a defense to the motion. The case should be stayed under the provisions of the soldiers' and sailors' relief act of Congress or at least until Jackson should have an opportunity to be heard. At the hearing Smith stated in his place substantially what he alleged in the written response, and that he did not acknowledge service in the present proceeding as counsel for Jackson, and did not intend to do so, but signed as an accommodation to counsel for the opposite party because he had been counsel for Jackson in the divorce action, and that the service upon him was ineffectual to bind Jackson. The court ruled that Smith did represent Jackson and was by the acknowledgment of service estopped from contending to the contrary. Thereupon Smith again insisted that he did not represent Jackson and requested the court to allow him time, if the court adhered to its ruling, to get in touch with Jackson and arrange and prepare his defense. This request was not granted. Smith then filed on behalf of the respondent a demurrer on several grounds, without waiving jurisdiction of the court, process, and service, but negativing the same, and before pleading to the merits. The demurrer was overruled, and thereafter the court, having before it the entire record in the divorce action, set aside the two verdicts and decree. *719
In a bill of exceptions brought to this court error is assigned on the ruling of the court that the defendant Jackson was represented in court by Smith as counsel, the overruling of the demurrer, the refusal to stay the proceeding, and the judgment setting aside the two verdicts and decree of divorce. It is explained in the brief of the plaintiff in error that since the hearing Smith has communicated with Jackson and his mother, the mother being in San Bernardino, California, and Jackson being overseas with a named address, and that Smith has been paid a fee and employed to represent him in this court on the bill of exceptions brought here.
1. The first question for decision is whether or not the court properly ruled that the defendant was represented in court by E. R. Smith as counsel. There is no dispute that he acknowledged service in writing as "attorney for respondent, James L. Jackson." Smith contends, however, that he signed only because he had been counsel in the former litigation and as an accommodation to counsel for the opposite party, and that his action was unauthorized and misconceived because he had not in fact been employed in the present litigation. The defendant may acknowledge service or process, but this must be done in writing by him or someone authorized by him to do so. Code, § 81-211. No warrant of attorney is required in this State, and an acknowledgment of service signed by one as attorney for the defendant is prima facie authorized until the contrary appears. Dobbins v.Dupree,
In the present case, the defendant did not appear in person and repudiate the attorney's action in signing the acknowledgment of service. Smith represented that it was his information that Jackson was in the armed forces of the United States, but, under the presumption here as to the attorney's authority to represent him, another presumption could not be indulged that the authority would be denied by Jackson were he present. In the absence of a counter showing on behalf of the defendant by someone not estopped, the court did not err in ruling that the attorney's act in acknowledging service was authorized and binding upon Jackson for the purposes of the present litigation. It does not follows, however, that he would be concluded from seeking in a direct proceeding to set aside an adverse judgment on the ground that he had not employed the attorney.
2. The attorney being prima facie authorized to represent the defendant, the demurrer filed in his behalf to the "motion" or application necessarily calls for a review of the trial court's ruling thereon. One ground of demurrer attacks the pleadings as defective because no process was attached. A determination of the merits of this objection requires that we first examine into the nature of the plaintiff's action. The pleading is denominated a "motion" to set aside two verdicts and a decree of divorce, and the prayer is not for process under the Code, § 81-201, requiring the defendant to be and appear at a named term thereafter, but is for a rule nisi to show cause why the verdicts and decree should not be set aside. A motion to set aside a judgment must, however, be based on some defect appearing on the face of the record which is not amendable. § 110-702; Artope v. Barker,
Judgment reversed. All the Justices concur.