Penfold, Clay & Co. v. F. P. Singleton & Co. , 36 Ga. 556 ( 1867 )

Warner, C. J.

The error assigned to the judgment of the Court below in this case, is the overruling the motion to set aside the judgment against the defendants. It appears from the record, that a suit was pending in the Superior Court of Clay county, in favor of Penfold, Clay & Co., vs. F. P. Singleton & Co., upon a promissory note. The suit was brought by Stafford, as the attorney of Penfold, Clay & Co.

Pending the suit, it being represented that Penfold, Clay & Co. were alien enemies, on motion of Stafford, their attorney, an order was passed by the Court niaking ¥m. C. Daniel, receiver of the Confederate States, party plaintiff, and that said case proceed to judgment in his name, for the use of the Confederate States. There was a verdict and judgment thereon in favor of the substituted plaintiff against the defendants, which is signed by S. S. Stafford, plaintiff’s attorney. The defendants paid off the judgment in Confederate money, without any objection being made to the currency, so far as the record shows. In August, 1867, Stafford, acting as the attorney of Penfold, Clay & Co., moved to set aside the judgment so rendered against the defendants in the case. This motion the defendants resisted, and the Court refused to grant it.

The defendants had nothing to do with making Daniel a party plaintiff, they were sued upon their contract and judgment obtained against them in a regular judicial proceeding. The judgment ivas regularly obtained against them, and they have paid it, and are entitled, so far as this record shows, to be protected in that payment by the judgment of the Court. Whether the original plaintiffs have received the money paid by the defendants in satisfaction of the judgment, does not affect them, they were not bound to see that the officers of the Court, to whom they paid the money, made a proper application of it in the absence of any fraud or collusion on their part. If Mr. Stafford, as the attorney of Penfold, Clay & Co., had been prevented from prosecuting the suit in their name, he could have dismissed it, or refused, as their attorney, to prosecute the suit in the name of other parties; but having voluntarily substituted the name of Daniel as plaintiff', and prosecuted the suit to judgment against the defendants in his name, and they having paid off the judgment, they will be protected by it in such payment, and the motion to vacate and set it aside, was in our judgment, properly refused by the Court below upon the state of facts presented by this record.

Let the judgment of the Court below be affirmed.