Dobbins v. Error

• Decision Date: 30 June 1869
• Citation: 39 Ga. 394
• Parties: MILES G. DOBBINS, plaintiff in error. v. CHAS. L DUPREE. defendant in error.
• Court: Georgia Supreme Court

39 Ga. 394

MILES G. DOBBINS, plaintiff in error. v. CHAS. L DUPREE. defendant in error.

Supreme Court of the State of Georgia

(Atlanta, June Term, 1869.)

Motion to set aside confession of judgment. Decided by Judge Green. Spalding Superior Court. February Term, 1869.

See this case in 36th Ga. R., 108. When it was called for retrial, counsel for Dobbins moved to dismiss the motion to vacate the judgment upon the ground that, pending this motion, Dupree had been adjudged a bankrupt and had an assignee in bankruptcy duly appointed. These statements were proved by the record from the proper offices. The Court overruled the motion to dis-miss and ordered that the trial proceed. The evidence produced in thiscase before, was Reproduced; there was some variation in the words of the witnesses, and also some additional testimony. For so much of this as is material to and understanding of the opinion, see them.

The Court charged the jury, 1st. That the employment of an attorney-at-law, by a party, in all his cases, does not authorize the attorney to acknowledge service of the suits; the authority to acknowledge service must be specially given; it may be a general authority to acknowledge service in all suits or a special authority in particular suits. 2d. If Dupree had notice of the suit and afterwads, Cook, as attorney, under his authority, either special or general, confessed a judgment for him, Dupree is bound by it.

He was requested to charge that, though the attorney was not duly authorized to acknowledge service and confess judgment, yet if the same was done and the defendant admits that all the defense he had against the note was usury reserved in the contract by the plaintiff in the judgment sought to be set aside, who has, according to the evidence, remitted and discharged from said judgment all the usuary included therein, the jury should find in favor of Dobbins. The Court refused so to charge. He further charged that, if Dupree had notice of this judgment in 1862 and 1863, and took no steps to vacate or set it aside until 1866, such conduct may amount to an acquiescence in and ratification of said judgment, and the jury may find for Dobbins, as a party may be bound by the act of an assumed agent either by ratification or by silence, according to the circumstances of the case. The jury found for Dupree, vacating the judgment. Dobbins' counsel moved for a new trial, upon the ground that the Court erred in not dismissing the motion, because of Dupree's bankruptcy; that the verdict is contrary to the weight of the evidence; that the charge of the Court first stated was erroneous; that the verdict was contrary to the charge of the Court as to acquiescence after notice of the judgment, and that the refusal to charge as requested was error. The Judge refused anew trial, and upon this error is assigned.

Speer & Beck, Boynton & Dismuke, for plaintiff in error, cited this case in 36th Ga. R., 108; Denton v. Noyes, 6th John. R.; 1 Bac. Abridg., 486: 7th Pick R., 137; 6th Cowen R., 388; 7 Cowen R., 251; 6 Wend. R., 571; 1 Salkel, 86; Comyn's Dig., 7; 1 Keble, 89; 1 Breese, 260; 7 H. & J., 275; 5 do., 478; 1 Tyler, 364; 2 H. & J., 374; 2 Yates, 546.

Peeples & Stewart, for defendant in error, as to the bankruptcy, cited James' Bankrupt L., 63-7-9; 2 Barb. Ch. R., 596; 11 Foster's N. H. R., 542; Smith v. Lawton, decided at this term; there is evidence enough: 4th Ga. R., 360; pt. 2d. Ga. Decisions, 38; Shumate v. Parsons, 37th Ga. R., 102; as to acknowledgment and confession unauthorized; Irwin's Code, 3264; 13th Ga. R., 217; 16th do., 194; 17th do., 67; Cobb's N. Dig. 471.

McCAY, J.

This was motion to set aside a judgment in favor of Dobbins v. Dupree, and L. T. Doyal, obtained in November, 1861. The suit was on a note of Doyal, to which Dupree was security. The motion was by Dupree, and was based on the ground that he had never been served and had no notice of the suit. It appeared by the entries on the declaration that no process had ever issued, nor had there been any service upon either party by the sheriff. There was an entry on the writ of waiver of process and acknowledgment of service, signed April 30th, 1861, by "Doyal & Cook, defendant's attorneys." There was also a confession of judgment signed in the same way at November Term, 1861. It was admitted that four hundred dollars of the debt was usury. No effort had been made to enforce the fi. fa. against Dupree until a short time before the motion to set aside was made, although in 1862 the sheriff had applied to Doyal for the costs.

Dupree was himself a witness, and denied positively that heever knew of the existence of the suit, until a short time *before the motion was made. He also swore that he had never employed Doyal & Cook as his attorneys in the case, or conversed with them, or either of them, on the subject. Dobbins swore that he had told Dupree he was goingto sue, and that Dupree desired suit to be brought. Dobbins also swore that, after the judgment, during the war, he had spoken to Dupree about the judgment and the payment of it. This evidence, so far as it used the word judgment, was at the second trial, and Dobbins in the first trial had said he had spoken of the debt. He said, however, that his attention had not, at the first trial, been called to the judgment.

It appeared from the evidence that Doyal went into the Confederate army on the 20th of April, 1861; that in the fall of 1860 he had taken into partnership, as a lawyer, a young man, Mr. V. Cook; that when he left he had told Cook that if any suits were brought against him to acknowledge service. Doyal stated, also, that he did not expect to be sued in this case, and that Dupree had never given him authority to acknowledge service. Doyal also stated that he had generally been Dupree's lawyer. It was in proof that within a year or two before this suit was brought, several suits were pending, to which Dupree was a party, and that Doyal was his attorney, and the record showed that in these cases, after Cook came into partnership with Doyal, the firm name was signed to the papers, though there was no evidence that Dupree knew of this latter fact, and he denied, on oath, that he did. There were various other points of testimony, the object of which was to show that Cook had acted as attorney for Dupree in several matters, and that they were on terms of familiarity. The acknowledgment of service, signed "Doyal & Cook, " was in Cook's hand-writing, and was dated after Doyal left for Virginia. Cook's interrogatories were taken. He said he had no recollection of the transaction. If the signature was in his handwriting, he had no doubt he had authority from the parties to do as he did—he would not otherwise have done so. He had no recollection of ever having any communication with Dupree on the subject. Doyal had told him, when he left, to acknowledge *service for him if he was sued. The case went to the jury, who set aside the judgment, and that verdict came to this Court in June, 1867, for review. This Court set aside the verdict as contrary to the evidence, upon condition that Dobbins should remit the usury.

The case was tried again at February term, 1869, of Spalding Superior Court, and the jury again found for Dupree, and that verdict is now before us for review as contrary to the testimony. Very little new evidence was adduced, except a second set of interrogatories of Cook. Attached to that set was the original writ. He says that the acknowledgment is in his handwriting, and he does not believe he would have so acknowledged unless he had understood he had authority from the parties, though he might have done so from instructions given him by Colonel Doyal when he left for the army, who told him he did not want his wife annoyed, and if any suits werebrought against him to acknowledge service. He had no recollection of ever talking with Dupree before or during the suit on the subject. On being asked what he meant by having authority, or by understanding he had authority, and if he meant anything more than the authority given him by Doyal, he answered as follows: "He meant he thought he had authority, but he might have acted on Doyal\'s instructions alone, as neither at the time of the taking of his first interrogatories, nor now, he cannot recollect that Dupree ever spoke to him on the subject."

So far as this case turns upon the evidence, it appears to my mind not only that the verdict does not shock the moral sense by its contrariety to the testimony, but that it is demanded by the burden of the proof. Here is one witness who swears particularly that he was never served, and that he gave no authority to any one to acknowledge for him. That he was not in fact served, and did not himself acknowledge service, is admitted, for the whole of the plaintiff's case is based upon a claim that the acknowledgment of "Doyal & Cook" was author ized. It is not pretended that there is any direct proof of this authority. Doyal denies *that he had any. Dupree asserts that he gave authority to no one, and Cook says he has no recollection of getting any authority from Dupree. This exhausts the testimony as to direct evidences. If the case stopped here it would be conclusively with Dupree and against the judgment. Nor is the indirect evidence sufficient, in our judgment, to establish the fact. What is that evidence? 1st. Some proof by the plaintiff, denied positively by the defendant, that he, the plaintiff, had informed defendant that he was about to sue, and that defendant desired it, and that he had talked with him about the judgment, after it was obtained, during the war. 2d. Evidence going to show that Doyal had been Du-pree's attorney in other cases, and that after Cook came into the office, those cases were managed in the name of Doyal & Cook. 3d. The fact that Dupree lived in the country, and that Doyal, at one of his visits home, had been applied to by the sheriff for the costs, and had perhaps...