Turner v. Jordan

67 Ga. 604 | Ga. | 1881

Jackson, Chief Justice.

This was a motion to set aside a judgment on the ground that the administrator was made a party in less than twelve months after the death of intestate without his consent, or the consent of any counsel employed by him, and without his knowledge.

The entire case, law and fact, was submitted to the court,, and the judgment was set aside. Whereupon the plaintiff' excepted, and assigns for error here three points.

1. The first is that the administrator was incompetent to testify, Parks, the counsel, or one of counsel employed by the intestate, being dead. Parks was not a party in any sense, neither to the contract or cause of action, nor was there any conflict of pecuniary interest to him between him and the administrator. The judgment in this, case could not be used in any other suit for or against, •him, and the administrator is competent to testify in respect to his employment or non-employment by him. Whatever interest the administrator had goes to his credit and not to his competency.

2. Secondly, it is alleged that the motion to set aside-the judgment cannot be entertained in this case, for the reason that the defect does not appear on the face of the judgment or record. The motion was made as soon as the administrator heard of the judgment at the next term thereafter, and is in time. The pleadings are full, the grounds distinctly alleged, and ail parties in interest are made parties to the motion. This takes this case without ■the ruling in 60 Ga., 353. That was a proceeding between two judgment creditors contending for the funds in. court of the defendant in execution. One judgment creditor 'attacked the judgment of another, and the defendant in the judgment was not made a party.

3. Thirdly, it is assigned for error-that the judgment is wrong. The testimony is clear that the counsel employed by the decedent gave the consent, but that none of them were employed by the administrator. The administrator has important rights of his own at stake in addition to those of the estate, and it is easy to see how those rights might be put in jeopardy by failure to file pleas which might protect him from personal liability. He had twelve months given him by law before he could be made a party, and yet is made one before that time expired by persons wholly unauthorized to consent for him. In Dobbins vs. Dupree, 39 Ga., 394, this court set aside a judgment con.fessed by the attorney of defendant, as the record showed, •upon aliunde proof that the attorney was not retained by -the defendant. That case covers and controls this.

Judgment affirmed.