Opinion
35721.
DECIDED JUNE 15, 1955.
Complaint. Before Judge Jones. Albany City Court. March 22, 1955.
Robert W. Reynolds, for plaintiff in error.
Frank F. Faulk, Jr., contra.
Under the full record of this case, it will be found that the trial court did not err in denying the relief sought by the petition in the instant case.
DECIDED JUNE 15, 1955.
We will give, without much detail, a history of the situation between the parties here. Mrs. Irene W. Field and Miss Alice Field, defendants in error (hereinafter referred to as the Fields), obtained a common-law judgment against a debtor of the defendants. After obtaining this judgment, garnishment proceedings were obtained against Cecil Cameron. The garnishment proceedings were properly instituted. Cameron, the garnishee, filed no answer within the time required by law, and the trial judge, the veteran jurist Honorable Clayton Jones, properly entered a default judgment in favor of the Fields on December 13, 1954. Thereafter Cameron, through his attorney, Robert W. Reynolds, who is also attorney for Cameron here, filed an answer denying that as garnishee he owed anything to the defendant in fi. fa. in the common-law judgment. It must be kept in mind that this answer was filed after the time for answering garnishment had expired and after default judgment had been entered against Cameron, the garnishee. The hearing concerning this belated answer in the garnishment proceeding came before the trial judge of the City Court of Albany, who entered the default judgment on August 9, 1954. On November 8, 1954, the court at the instance and consent of the attorneys, Reynolds representing Cameron and Faulk still representing the Fields, approved and entered a judgment wherein the garnishee Cameron should pay $150 immediately and pay $100 per month thereafter until the common-law judgment was extinguished. In this consent judgment of November 8, 1954, proposed by Cameron through his attorney, the terms of payment of the default judgment of August 9, 1954, were modified. On December 13, 1954, Judge Jones, after reciting that the defendant and garnishee had failed and defaulted in the payment of the amount as agreed by counsel and ordered by the court on November 8, 1954, and stating that the judgment had been confessed, issued an execution on December 13, 1954, covering the whole amount of the indebtedness. Thereafter Cameron filed the instant proceeding, which he termed a proceeding in the nature of a motion for new trial. In this proceeding Cameron through attorney Reynolds specifically stated in his brief that he was not attacking the judgment entered against him on August 9, 1954.
The petition involved in the instant case is predicated on the theory that the attorney for Cameron was without authority from Cameron to confess judgment modifying the original default judgment, and that his only authority was to answer the garnishment proceedings. After a hearing on the instant petition, the trial court within its discretion denied the prayers. Under all the facts and circumstances of this case and without going into further detail, the record reveals that Cameron is bound by the judgment of December 13, 1954. We say this because Cameron paid the $150 mentioned in the consent judgment entered into by attorney Reynolds, and further because Cameron paid the $150 as provided for in the consent judgment. Cameron is therefore estopped from denying the authority of attorney Reynolds in petitioning for a modification of the default judgment, and since Cameron violated the terms of the consent judgment, petitioned for and obtained by Cameron's attorney Reynolds, the trial court properly issued a judgment for the balance due. We have no doubt that the trial court, in the exercise of its discretion, properly denied further indulgence of Cameron in the instant proceedings.
Judgment affirmed. Townsend and Carlisle, JJ., concur.