Levadas v. Beach

| Ga. | Mar 3, 1904

Lamar, J.

(after stating the foregoing facts.) Every citizen has the constitutional right to represent himself in court. Civil Code, § 5701. This right, however, is rarely exercised in those cases where the pleadings and practice of necessity involve techr nical skill. But the law evidently contemplates that many suits will be prosecuted in a justice’s court without either party being represented by counsel, and the practice therein is adjusted to this theory. Parties might be entirely ignorant as to the form in which a judgment should be entered, and therefore the law not only requires a. justice to enter the judgment in those cases tried without a jury, but permits him also to enter the judgment where there has been a verdict. His power to do so-is not destroyed by the fact that in a particular case the plaintiff is represented by an attorney who as an officer of court might perform the same duty. Scott v. Bedell, 108 Ga. 209. Besides, the fact that the judgment must be entered on the docket clearly indicates that the entry thereon can lawfully be made by one whose duty it is to keep the docket and make entries therein. The judgment here' having been properly entered by the justice, there was no necessity for an order nunc pro tunc or for further action by the attorney. Gunn v. Tackett, 67 Ga. 725.

The defendant has had his day in court and can not go behind the judgment rendered, nor can he as principal seek, upon an affidavit of illegality, to attack the judgment because, as he contends, it was erroneously entered up against certain securities. If this be true, the execution may never be enforced against them. When such an attempt is made, they can be heard. The defendant can not make their fight, or take advantage of defects as to third persons, in order to arrest the fi. fa. when it is proceeding legally against him alone.

The defendant further insists that from the face of the record, and as a matter of pure mathematics, it appears that the judgment was entered for too much interest. We have not before us the record, and are therefore unable to say whether this calculation be correct. But the other grounds of the illegality having .been disposed of, it appears that he is justly indebted to the plaintiff for the principal and legal interest, whatever that may be. Even if he can thus attack a judgment from which he had the right to appeal or certiorari, yet he must pay what he owes, before he can be heard by affidavit of illegality as to that which he does not owe. White v. Mandeville, 72 Ga. 705; Stanford v. Connery, 84 Ga. 732 (3a); Civil Code, § 5661. The judge properly refused the certiorari.

Judgment affirmed.

All the Justices concur, except Simmons, C. J., absent.