Lowrey v. Richmond & D. R. Co.
| Decision Date | 21 October 1889 |
| Citation | 10 S.E. 123,83 Ga. 504 |
| Parties | LOWREY v. RICHMOND & D. R. CO. |
| Court | Georgia Supreme Court |
Error from city court of Atlanta; VAN EPPS, Judge.
E. H Frazer and R. T. Dorsey, for plaintiff in error.
Jackson & Jackson, for defendant in error.
1. It is assigned as error in this record that the court erred in dismissing; the plaintiff's action for the want of sufficient process, it appearing that the petition setting forth the plaintiff's cause of action was addressed to the city court of Atlanta, and that process was prayed returnable to that court; but that the clerk of the superior court of Fulton county, who is also ex officio clerk of the city court of Atlanta, annexed a process to the declaration, and copy declaration which was served on the defendant, requiring the defendant to appear at an impossible term of the superior court, which process bore test in the name of the judge of the superior court, and was signed by the clerk of the superior court. The law requires the petition to be filed with the clerk of the court to which the same is directed, and also provides that the clerk shall issue a process thereto, bearing test in the name of the judge of that court, and signed by such clerk. The petition in this case being addressed to the city court of Atlanta and process being prayed from that court, none but the clerk of that court, with whom it was filed, could issue a process and annex the same to such petition. The superior court, or the clerk thereof, after the petition had been filed with the clerk of the city court, could issue no process in this case. It has been the universal practice for parties bringing suits such as tills to pray process returnable to the court to which the petition is addressed. This is the form prescribed in the Code, (sections 3389-3396.) The only authority which a clerk has to issue process is that the petition which constitutes the plaintiff's action is filed in the court of which he is clerk; and the same must bear test in the name of the judge of that court. Id. §§ 3332-3334. In this case the defendant was required to appear at the superior court to answer the petitioner's complaint. He might have appeared at that court, and, having found no case there against him, he might have departed, and judgment might have been rendered in another court--the city court--against him, without any notice to him that there was any action pending against him...
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The State ex rel. Wells v. Hough
...must be served as such after filing. Mills v. State, 10 Ind. 114; Hirst v. Cone, 12 Ind. 257; Beagon v. State, 108 Ind. 155; Lowry v. Richmond, 83 Ga. 504; Bailey Palmer, 5 Ark. 208; Roth v. Wade, 2 Hill 385; Brackett v. Simons, 1 N.Y.S. Ct. 86; U.S. v. Eddy, 28 F. 226; Robinson v. Orr, 16 ......
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Crown Laundry v. Burch
... ... In all of this we concur, ... for, in the absence of a prayer therefor, the clerk has no ... authority to issue process, Lowrey v. Richmond & Danville ... R. Co., 83 Ga. 504, 10 S.E. 123, and 'Void process is ... equivalent to no process, and the same result would follow ... ...
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Laundry v. Burch
...we concur, for, in the absence of a prayer therefor, the clerk has no authority to issue process, Lowrey v. Richmond & Danville R. Co., 83 Ga. 504, 10 S.E. 123, and "Void process is equivalent to no process, and the same result would follow from attaching a void process as from a failure to......
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W. T. Rawleigh Co. v. Watts
...the first Monday in August, the next regular term as prayed, and which process was held to be amendable, the Supreme Court distinguished the Lowrey case as follows: "As will seen from a casual reading of that case, its facts were different from the facts in the present case. In that case th......