Summary
In Jackson this court established the following methodology in resolving challenges to an attorney's authority to execute an acknowledgment of service: "The defendant may acknowledge service or process, but this must be done in writing by him or someone authorized by him to do so.
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15245.
SEPTEMBER 7, 1945.
Motion to set aside judgment, etc. Before Judge W. R. Smith. Berrien superior court. April 28, 1945.
E. R. Smith, for plaintiff in error.
McDonald McDonald, contra.
1. No warrant of attorney is required in this State, and an acknowledgment of service by one as attorney for the defendant in the present case was prima facie authorized until the contrary appears.
( a) Such an acknowledgment estops the attorney from later contending that he acted without authority, and, where no counter showing is made on behalf of the defendant by someone not estopped that he did not in fact represent the defendant, the court did not err in ruling that the acknowledgment was authorized and binding upon the defendant.
2. The present "motion" to set aside two verdicts and a decree of divorce, and praying for the issuance of a rule nisi, was not based on any defect appearing on the face of the record, and, accordingly, was not in legal effect a motion to set aside a judgment. While, because of the allegations of fraud on the part of the plaintiff in the divorce action in failing to serve the defendant therein, the present pleading partakes somewhat of the nature of an independent proceeding in equity, though not precisely so because not returnable to the next ensuing term of court, it was fatally defective in that the essential process required by the Code, § 81-201, was not attached and no waiver of the requisite process appeared. Accordingly, the court erred in overruling the defendant's ground of demurrer which challenged the sufficiency of the petition in this respect, and all proceedings thereafter were nugatory.
No. 15245. SEPTEMBER 7, 1945.
Willie Mae Jackson filed in the superior court of Berrien County, Georgia, at the March, 1945, term, a "motion" naming James L. Jackson as defendant, and seeking to set aside two verdicts and a decree of divorce which he had obtained against her in the same court. A copy of the divorce proceeding was attached as exhibit "A" and made a part of the "motion." This exhibit showed that the divorce had been sought, on the ground of desertion, by the wife who was alleged to be a non-resident. Her residence or abiding place was not disclosed. It was alleged that, until the time he was drafted into the armed forces of the United States, the plaintiff therein was a resident of Berrien County, Georgia, and had been so for thirty years continuously. the exhibit also showed that process had been issued in the divorce action on August 8, 1943, and that on August 11, 1943, the court ordered that the defendant, Willie Mae Jackson, be served by publication. The present "motion" alleged that the movant had no knowledge of the divorce action until April 6, 1945, after the rendition of the decree on March 21, 1944, and that the two verdicts and the decree are void "because no service of said petition and process or either of them was ever served upon movant, and this movant did not appear in said court and make defense, neither did she waive service nor was there any service by publication as required by law, neither was there any substituted service in said case." The prayers were that: "(a) an order be passed by this honorable court requiring said James L. Jackson to be and appear before this court within a reasonable time to show cause, if any he has, why this motion should not be sustained and each of said verdicts vacated, annulled, and set aside, and that said decree granting said divorce annulled, vacated, and set aside; (b) service of this motion and this order be perfected by serving the same upon E. R. Smith, the attorney for said James L. Jackson, and who represented him in said proceeding; (c) such other and further relief be granted to movant as may seem meet and proper."
Upon the filing of this "motion," the court issued a rule nisi, providing that a copy thereof, together with a copy of the "motion," "be served upon the respondent, James L. Jackson, by serving his attorney at law and of record, E. R. Smith, and that the said E. R. Smith show cause before me in the courtroom of Berrien superior court on the 28 day of April, 1945, at 10 o'clock a. m. why said motion should not be granted and the verdicts and decree set aside, annulled, and declared void as prayed for in said petition." E. R. Smith, on April 13, 1945, acknowledged service in writing and agreed that the judge might sign the rule nisi at any time before the hearing. This acknowledgment was signed as "attorney for respondent, James L. Jackson." When the hearing came on, Smith filed a verified written response, alleging, among other things, the following: He had not been employed to represent the respondent, though he had acted as counsel for Jackson in his divorce action under employment by his mother. Smith's information was that she now resided in the State of California, but he did not know her address and had been unable to communicate with her. Jackson was in the armed services of the United States, and it was Smith's information that he was overseas. It would be necessary for Smith to get in touch with Jackson or his mother to ascertain whether or not Smith would be employed in the present proceeding and in order to properly prepare a defense to the motion. The case should be stayed under the provisions of the soldiers' and sailors' relief act of Congress or at least until Jackson should have an opportunity to be heard. At the hearing Smith stated in his place substantially what he alleged in the written response, and that he did not acknowledge service in the present proceeding as counsel for Jackson, and did not intend to do so, but signed as an accommodation to counsel for the opposite party because he had been counsel for Jackson in the divorce action, and that the service upon him was ineffectual to bind Jackson. The court ruled that Smith did represent Jackson and was by the acknowledgment of service estopped from contending to the contrary. Thereupon Smith again insisted that he did not represent Jackson and requested the court to allow him time, if the court adhered to its ruling, to get in touch with Jackson and arrange and prepare his defense. This request was not granted. Smith then filed on behalf of the respondent a demurrer on several grounds, without waiving jurisdiction of the court, process, and service, but negativing the same, and before pleading to the merits. The demurrer was overruled, and thereafter the court, having before it the entire record in the divorce action, set aside the two verdicts and decree. In a bill of exceptions brought to this court error is assigned on the ruling of the court that the defendant Jackson was represented in court by Smith as counsel, the overruling of the demurrer, the refusal to stay the proceeding, and the judgment setting aside the two verdicts and decree of divorce. It is explained in the brief of the plaintiff in error that since the hearing Smith has communicated with Jackson and his mother, the mother being in San Bernardino, California, and Jackson being overseas with a named address, and that Smith has been paid a fee and employed to represent him in this court on the bill of exceptions brought here.
1. The first question for decision is whether or not the court properly ruled that the defendant was represented in court by E. R. Smith as counsel. There is no dispute that he acknowledged service in writing as "attorney for respondent, James L. Jackson." Smith contends, however, that he signed only because he had been counsel in the former litigation and as an accommodation to counsel for the opposite party, and that his action was unauthorized and misconceived because he had not in fact been employed in the present litigation. The defendant may acknowledge service or process, but this must be done in writing by him or someone authorized by him to do so. Code, § 81-211. No warrant of attorney is required in this State, and an acknowledgment of service signed by one as attorney for the defendant is prima facie authorized until the contrary appears. Dobbins v. Dupree, 36 Ga. 108; Buice v. Lowman Gold c. Co., 64 Ga. 769 (3-a); Hendrix v. Cawthorn, 71 Ga. 742 (2); Rooke v. Day, 46 Ga. App. 379 ( 167 S.E. 762). See generally, as to the presumption of authority of an attorney when purporting to act for another, Dobbins v. Dupree, 39 Ga. 394 (2); Alexander v. State of Georgia, 56 Ga. 478, 485; Planters c. Fire Asso. v. DeLoach, 113 Ga. 802 (4) ( 39 S.E. 466); Bigham v. Kistler, 114 Ga. 453, 459 ( 40 S.E. 303); Workingmen's Union Asso. v. Reynolds, 135 Ga. 5, 7 ( 68 S.E. 697); Edwards v. Wall, 153 Ga. 776 (3) ( 113 S.E. 190); Aycock v. Williams, 185 Ga. 585, 589 (2) ( 196 S.E. 54); Code, § 9-604. While this presumption is not conclusive, but is one which may be rebutted by the party for whom the attorney purports to act if he proceeds in due time, the burden is upon the party to show the want of authority in the attorney. Dobbins v. Dupree, supra; Bigham v. Kistler, supra. It is also true that "A judgment rendered against a party, either plaintiff or defendant, upon a wholly unauthorized appearance of an attorney, if the act of the attorney be not ratified, will be set aside in a direct proceeding for that purpose, in law or equity, if the party is not guilty of unreasonable delay after notice or knowledge of the judgment; and this relief will be granted irrespectively of the solvency of the attorney making the appearance." Anderson v. Crawford, 147 Ga. 455 ( 94 S.E. 574, L.R.A. 1918B, 894).
In the present case, the defendant did not appear in person and repudiate the attorney's action in signing the acknowledgment of service. Smith represented that it was his information that Jackson was in the armed forces of the United States, but, under the presumption here as to the attorney's authority to represent him, another presumption could not be indulged that the authority would be denied by Jackson were he present. In the absence of a counter showing on behalf of the defendant by someone not estopped, the court did not err in ruling that the attorney's act in acknowledging service was authorized and binding upon Jackson for the purposes of the present litigation. It does not follows, however, that he would be concluded from seeking in a direct proceeding to set aside an adverse judgment on the ground that he had not employed the attorney.
2. The attorney being prima facie authorized to represent the defendant, the demurrer filed in his behalf to the "motion" or application necessarily calls for a review of the trial court's ruling thereon. One ground of demurrer attacks the pleadings as defective because no process was attached. A determination of the merits of this objection requires that we first examine into the nature of the plaintiff's action. The pleading is denominated a "motion" to set aside two verdicts and a decree of divorce, and the prayer is not for process under the Code, § 81-201, requiring the defendant to be and appear at a named term thereafter, but is for a rule nisi to show cause why the verdicts and decree should not be set aside. A motion to set aside a judgment must, however, be based on some defect appearing on the face of the record which is not amendable. § 110-702; Artope v. Barker, 74 Ga. 462; Regopoulas v. State, 116 Ga. 596 ( 42 S.E. 1014); Sweat v. Latimer, 119 Ga. 615 ( 46 S.E. 835); Drake v. Brown Mfg. Co., 121 Ga. 550 ( 49 S.E. 590). Such a motion must be made to the court by which the judgment was rendered, and the opposite party must have reasonable notice. Code, § 110-707; Bell v. Hanks, 55 Ga. 274 (3). The "motion" here does not seek to set aside the judgment for any defect appearing on the face of the record. It was alleged only that the movant did not know until April 6, 1945, of the divorce action culminating in a decree against her on March 21, 1944, and that the verdicts and decree were void because no service of said petition and process or either of them was ever had upon the movant, and that she did not appear in court and make defense, and neither did she waive service nor was there any service by publication as required by law, and there was not substituted service in said case. The "motion," therefore, can not be treated as one to set aside a judgment, for any defect appearing on the face of the record, after notice to the opposite party by a rule nisi or other appropriate order of the court. It partakes somewhat of the nature of an independent suit in equity. But in the latter case, under the Code, § 110-710, a petition, which may be filed in term or vacation, is returnable to the next ensuing term commencing not less than twenty days from the date on which the petition is filed. Williamson v. Haddock, 165 Ga. 168 ( 140 S.E. 373). Furthermore, the only process that is valid in such an equitable proceeding is that which is required by the Code, § 81-201, which provides that "The clerk shall annex to every petition a process (unless the same shall be waived), signed by the clerk or his deputy, and bearing teste in the name of a judge of the court, and directed to the sheriff or his deputy, requiring the appearance of the defendant at the return term of the court." The failure of the clerk to issue and attach to the petition process in substantial conformity with the statute renders the entire proceeding void and is not a mere irregularity. Little v. Ingram, 16 Ga. 194; Moss v. Strickland, 138 Ga. 539, 540 ( 75 S.E. 622). The petition here lacked the requisite process, and there was not waiver of process. While the attorney acknowledged service of the "motion," and agreed that the court might sign a rule nisi at any time before the hearing, this did not constitute a waiver of the essential process prescribed in the Code, § 81-201. See Ross Son v. Jones, 52 Ga. 22; Seisel v. Wells, 99 Ga, 159 (2) (25 S.E. 266); Thacker v. Thacker, 167 Ga. 706 ( 146 S.E. 457). Where there is no process and no waiver of process, no valid suit arises. Brady v. Hardeman, 17 Ga. 67; Florida Central c. R. Co., v. Ragan, 104 Ga. 353 ( 30 S.E. 745); Stinson v. Branan, 166 Ga. 752, 754 (2) ( 144 S.E. 324). Hence, if the "motion" could be treated as an attempt to bring an independent suit in equity to set aside the two verdicts and decree of divorce, it is fatally defective for want of essential process, and the court erred in overruling the ground of demurrer. This error rendered all subsequent proceedings nugatory, and it is unnecessary to pass on other assignments of error.
Judgment reversed. All the Justices concur.