Crim v. Crawford

Supreme Court of Georgia

Crim v. Crawford

47 Ga. 628

CourtSupreme Court of Georgia

DecidedJanuary 15, 1873

StatusPublished

Cited by2 cases

This text of 47 Ga. 628 (Crim v. Crawford) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Crim v. Crawford, 47 Ga. 628 (Ga. 1873).

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Opinion

Warner, Chief Justice.

This was a motion made in the Court below to set aside a judgment by the defendant therein. The defendant first made a motion to open the judgment, so as to take the benefit of the Relief Act of 1868, which being overruled by the Court, the defendant then moved to set aside (he judgment on the ground that he had never been served with the petition and process on which the judgment was founded. The plaintiff then moved to dismiss defendant’s last motion, on the ground that be was estopped from making it. The Court held that the defendant was estopped from making that motion, because he had made the prior motion to open the judgment under the provisions of the Relief Act of 1868, and dismissed defendant’s motion, to which he excepted.

In our judgment, it was error in the Court, in dismissing the defendant’s second motion, on the ground that he was estopped from making it on the statement of facts contained in the record. Estoppels are not generally favored by the law, because the truth is excluded thereby. The fact that the de[629]*629fendant made the motion to open the judgment, to take the benefit of the Relief Act, would be evidence to be considered on the trial of the issue, as to whether he had been served with process-in the original suit, but it did not estop him from showing that fact, if he could do so, and we think he should have been allowed the opportunity to have proved the truth of the ease.

Let the judgment of the Court below be reversed.

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Warner, Chief Justice.

This was a motion made in the Court below to set aside a judgment by the defendant therein. The defendant first made a motion to open the judgment, so as to take the benefit of the Relief Act of 1868, which being overruled by the Court, the defendant then moved to set aside (he judgment on the ground that he had never been served with the petition and process on which the judgment was founded. The plaintiff then moved to dismiss defendant’s last motion, on the ground that be was estopped from making it. The Court held that the defendant was estopped from making that motion, because he had made the prior motion to open the judgment under the provisions of the Relief Act of 1868, and dismissed defendant’s motion, to which he excepted.

In our judgment, it was error in the Court, in dismissing the defendant’s second motion, on the ground that he was estopped from making it on the statement of facts contained in the record. Estoppels are not generally favored by the law, because the truth is excluded thereby. The fact that the de[629]*629fendant made the motion to open the judgment, to take the benefit of the Relief Act, would be evidence to be considered on the trial of the issue, as to whether he had been served with process-in the original suit, but it did not estop him from showing that fact, if he could do so, and we think he should have been allowed the opportunity to have proved the truth of the ease.

Let the judgment of the Court below be reversed.

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Bluebook (online)

47 Ga. 628, Counsel Stack Legal Research, https://law.counselstack.com/opinion/crim-v-crawford-ga-1873.

Opinion

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