Dobbins v. Dupree , 39 Ga. 394 ( 1869 )

'Warner, J.,

dissenting.

When it appeared from the record that a judgment had been entered against a defendant upon an acknowledgment of service on the writ, and confession of judgment by an attorney-at-law; that the defendant resided in the county, within one mile and a half from the Court-house where the judgment was rendered, and no motion having been made to set the judgment aside until the expiration of five years after it was rendered, and the attorney who made acknowledgment of service, and confessed the judgment, swears that he should not have done so without authority, and no just defense to the original contract being alleged as a reason for setting the judgment aside: Held, That under the 448th section of the Code, the acts of the attorney acknowledging service, and confessing judgment, were prima faeie correct, and binding upon the defendant as to his authority to do so independently of his testimony upon,that point, and that it is against the policy of the law, as well as against public policy, to allow the defendant to come into Court and set aside the judgment upon his own evidence that he had not been legally served in the original suit, upon the state of facts presented by the record, as was held by this Court, between the same parties in this case, in 36th Ga. Rep., 108.