Coston v. Dudley

"Warner, Chief Justice. This was a motion to set aside a decree in an equity ■cause on the grounds therein stated, which was granted ■by the court on the ground that a-decree pro confesso^ had not been taken in the .cause as required by the 4208th section of the Code, whereupon the complainant excepted. 1. It is insisted here that a decree in equity cannot.be .set aside on motion as was ruled by this court in Brown vs. Bennett, 55 Ga., 189. We adhere to the ruling ■of the court in that case, and if the complainant had [254] moved to dismiss defendants’ motion in this case and. the court had overruled it, we should have held it to be-error. But according to the judge’s certificate, there was no motion to dismiss the defendants’ motion to set aside-the decree because that was not the appropriate remedy, and the complainant appears to have waived all objections to the remedy adopted by the defendants, by joining issue with them and discussing the merits of the motion to set. aside the decree without objecting to the remedy, and it was too late to raise that question after he had taken his-chances and the decision of the court was against him upon the merits of the case. As to the right of the complainant to waive the remedy, see Code, section 10. 2. In view of the facts of this case as certified by the-presiding judge, we affirm the judgment of the court below. Judgment affirmed.