Kennedy v. Redwine

• Decision Date: 31 August 1877
• Citation: 59 Ga. 327
• Court: Georgia Supreme Court
• Parties: Harrison Kennedy, administrator, plaintiff in error. v. John E. RedwinE, defendant in error.

59 Ga. 327

Harrison Kennedy, administrator, plaintiff in error. v. John E. RedwinE, defendant in error.

Supreme Court of the State of Georgia

(August Term, 1877.)

Attorney and client. Estoppel. Process. Before Judge Rice. Hall Superior Court. March Term, 1877.

An execution in favor of plaintiff's intestate against A. M. Cochran, was levied upon certain land as the property of the defendant therein. A claim thereto was filed by Redwine. Upon a trial of the issue thus formed, title and possession were shown in Cochran at the date of the judgment. Claimant introduced the record of the suit in which such judgment was rendered, from which it appeared that he was attorney for the plaintiff, that no process was attached to the declaration, that "due and legal service" was acknowledged, and "copy and service by the sheriff" waived. Also the entries on the bench docket, from which it appeared that defendant had "answered" by counsel.

Upon the introduction of this evidence, the court dismissed the levy upon the ground that the judgment and execution were void.

The plaintiff moved for a new trial because the court erred in holding that the judgment and execution were void under the circumstances of this case.

The motion was overruled, and the plaintiff excepted.

*J. F. Eangston, for plaintiff in error.

J. B. Estes; J. N. Dorsey, for defendant.

BLECKLEY, Judge.

1. The attorney of record, who represented the plaintiff in bringing suit and taking judgment, will not be heard to urge, in his own behalf, the invalidity of the judgment for want of process. Hence, when execution founded upon the judgmentis levied upon land, as the defendant\'s property, and the attorney interposes a claim in opposition to the levy, he claiming the land as his own property, he cannot uphold his claim or defeat the levy by introducing the record and showing by the same that the judgment was rendered without process or any express waiver of process. He is estopped, on considerations of public policy, from meeting his former client with such an objection.

He may set up title in himself to the property. He may show that his property is levied upon to pay another's debt, but he has no right to say the debt was not lawfully reduced to judgment, since the procurement of the judgment was his own work, and a work of trust and confidence. The law gave him a lien on the judgment for his compensation. Code, sec. 1989. So it gave him power to transfer the judgment or execution, as against all the world except the plaintiff or his assignee. Code, sec. 3598. So the law charged him to keep his client's secrets inviolate. Code, sec. 417, paragraph 3. See, also, sec. 3798. The law would not permit him to accept employment as counsel for the defendant in the judgment in an application to have it set aside or declared void. 11 Ga., 47. He may know much against it or much in its favor, and his knowledge may have been acquired by reason of his connection with the suit. What he knows against it he should not use for his own advantage, and he should have no personal interest in not disclosing what he knows in its favor. Perhaps he may be aware that *when the defendant acknowledged service and waived copy, he intended to waive process also, and that the last was omitted from the writing by mistake. Knowledge like this would furnish a basis for amending the acknowledgment of service, and thus curing the want of process. Code, sec. 3490. The same reasons of public policy which would prevent the attorney from being employed to attack the judgment would require that he should not attack it on his own motion, or to subserve his own interest. The law is quite particular not to suffer attorneys to make a profit by going against their clients. It will not permit them to give advice on titles, and then buy in for themselves adverse and better...