Phillips & Co. v. Collier

87 Ga. 66 | Ga. | 1891

Simmons, Justice.

Under the facts in this case the court did not err in refusing to set aside the judgment. There was no defect apparent on the face of the record or pleadings; nor is it alleged that there was any defect therein. We do not think the reasons assigned in the motion to set aside the judgment were sufficient to authorize the trial judge to grant the motion. While it is true that counsel for the movants had marked his name on the docket, yet when the case was called for trial, neither he nor they appeared to defend the same. The suit being on an open account and there being personal service on the defendants, the court directed the jury to find a verdict for the plaintiff. This was proper, under the decision of this court in the ease of Stephens v. Gate City Gas-Light Co., 81 Ga. 150, where it was held that in a suit upon an open account, where there was personal service on the defendant, “he was as much concluded as if he had come into court and acknowledged the correctness of the account and that it was unpaid.” If counsel had been present and had neglected to summon witnesses and prove his defence, the court must have taken the same action, and the defendants, under that state of facts, would have- had as much right to move to set aside the judgment as they would in this case. Unfortunately for them they employed, counsel who neglected their business, and they must look to him for redress, instea,d of asking the court to set aside a solemn judgment because of his negligence.

But it is said that counsel is insolvent and cannot answer to the plaintiffs in error in damages for his negligent conduct. In reply to this it is sufficient to call attention to the case of Phillips v. Taber, 83 Ga. 573, where the same point was made, and in which this court said: “We do not think the plaintiff in error is entitled to any relief on this ground. Phillips doubtless knew the pecuniary condition of his counsel when he employed him. Whether he did or not, it would be a now doctrine to establish in Georgia that third parties are to be deprived of their rights because the defendant or the plaintiff, as the case may be, had employed an impecunious attorney.” Judgment affirmed.