67 Ga. 584 | Ga. | 1881
Certain real estate was levied on as the property of William Smith by virtue of a ft. fa. in favor of the plaintiff in error, against certain defendants as principal and said Smith, indorser. The jury found it not subject, and on the refusal of the court to grant a new trial on the grounds alleged in the motion therefor, error is assigned here.
There is no return of service on the papers anywhere,
It does appear that they confessed judgment for the defendants, but of course the defendants were only the parties who were served, and they were the principals, and not Smith, the indorser. Service may be acknowledged, but it must be in writing and signed by the defendant or some one authorized by him. Code, §3337. On these papers there is no acknowledgement in writing, nor any signature to anything of the sort by the defendant, or any other person for him, with or without authority from him.
Appearance and pleading will waive service: Code, §3335 i and by analogy a confession of judgment would waive it; because the object of service is to bring the defen. dant into court, and thus give him opportunity to defend But there is no confession on this record by this defendant in person, and the member of the firm of attorneys who wrote the confession and signed the firm name to it swore on the stand that he confessed only for the other two defendants who were served, and not for this indorser, who was not. Moreover, his testimony is corroborated by the fact that the confession, as it appears on the minutes, is in point of fact only for the other two ; and further corroborated by the fact that the same attorney, years before, bought every other judgment against Smith, and de_ dined to buy this judgment or execution, because it was void for want of service, as he then said, and for lack of confession. Those he did buy amounted to $25,000.00 on
Without regard, therefore, to claimant’s title, whether fraudulent or sound, as the jury found on sufficient legal evidence that there was no confession of judgment by Smith on which to base the judgment and execution against him, none of the property can be subjected to pay his debts, and it is unnecessary to consider claimant’s title. On the issue of confession of judgment or no confession, the testimony was conflicting to some extent, but the court below was right in upholding the verdict as, when taken in connection with the record and all the written proofs, it is supported by proof as clear and controlling, and morally certain, as could be expected after such lapse of time.
Cited for plaintiff in error: 59 Ga., 327; 64 Ib., 662 ; 28 Ib., 494; 57 Ib., 489; 55 Ib., 677; 53 Ib., 491 ; 42 Ib., 168 ; 56 Ib., 174; 44 Ib., 620 ; 36 Ib., 108 ; 51 Ib., 491 ; Code, §§397, 412, 3340; Freeman on Judg., 128; Weeks on Att’ys at Law, 203 ; 42 N. Y., 26; 34 Mo., 175; 2 Hill, 64; 3 Ed. Chan., 174; 9 Paige, 490 ; 30 Cal., 439.
For defendant: 24 Ga., 415 ; 40 Ib., 302 ; 52 Ib., 585 ; 40 Ib., 56.
Judgment affirmed.