Dozier v. Richardson

• Decision Date: 31 March 1858
• Citation: 25 Ga. 90
• Parties: E. J. Dozier, adm'r, plaintiff in error. vs. Richardson, Harts field & Co., defendants in error.
• Court: Georgia Supreme Court

25 Ga. 90

E. J. Dozier, adm'r, plaintiff in error. vs. Richardson, Harts field & Co., defendants in error.

Supreme Court of the State of Georgia

MARCH TERM, 1858.

Motion to set aside judgment, from Upson county. Tried before Judge Cabiness, at November Term, 1857.

This was a motion by Erasmus J. Dozier, administrator of Tarpley T. P. Holt, deceased, to vacate and set aside a judgment obtained against him as administrator, at February Term. 1856. of the Inferior Court of Upson county, in favorof Richardson, Hartsfield & Co., for $673.15, besides interest and cost.

It appeared, that pending the suit of Richardson, Hartsfield & Co. against Holt, that he died, and Dozier was appointed administrator of his estate; that at February Term, 1856, of the Inferior Court, an order was passed, reciting that scire facias having issued and been served upon the administrator, to show cause why he should not be made a party, and no cause being shown, it was ordered that the administrator be made a party defendant, and the cause proceed. And at the same term, judgment was confessed by T. W. & C. T. Goode, attorneys for defendant.

Dozier. the administrator, based his motion to set aside this judgment and the execution issued thereon, upon the grounds that he had never been served with any scire facias, and that said confession was made by said attorneys under a misapprehension of the case.

The issue formed upon this motion was transferred to the Superior Court, to be tried on the appeal, and the case being there submitted to a special jury, after the testimony was closed, the presiding Judge charged the jury: "That pending this suit, and before judgment, Holt died; in such case, the administrator can not be made a. party until scire facias issues and is served on him; and the issue now before you is, whether the order making Dozier a party defendant to the suit in the Inferior Court, should be vacated and set aside, on the ground that no scire facias was issued and served upon him.

"The facts recited in the order making Dozier a party is evidence, and can not be controverted except for fraud. If the order recites that a scire facias was issued and served, these facts are to be taken as true, and it is not competent for this Court to review the evidence upon which that recital was made, except the order be attacked as being obtained by fraud. The order being a judgment of a Court of competent jurisdiction, can not be impeached except for fraud, and themovant can not attack it on the ground merely that no scire facias was in fact issued and served."

There were three other cases in the same condition, and it was agreed that the result of one should settle all.

The jury found for the defendant, and counsel for movant moved for a new trial, on...