Bennett v. Taylor

• Decision Date: 11 May 1927
• Docket Number: 17996.
• Citation: 138 S.E. 273,36 Ga.App. 752
• Parties: BENNETT v. TAYLOR et al.
• Court: Georgia Court of Appeals

138 S.E. 273

36 Ga.App. 752

BENNETT v. TAYLOR et al.

No. 17996.

Court of Appeals of Georgia, First Division

May 11, 1927

Syllabus by the Court.

In an ordinary action in a city court, where an entry of personal service upon an individual defendant is returned by the sheriff, and where the entry is traversed by the defendant at the first term of the court after the date of the entry, and the sheriff is made a party, and where, upon the trial of the issue so made, undisputed evidence discloses that the sheriff left a copy of the petition and process in question with a son of the defendant at the defendant's office (the office not being at the defendant's residence), the defendant being absent at the time and not having subsequently waived proper service, a verdict in favor of the traverse is demanded.

Error from City Court of Summerville; B. E. Neal, Judge.

Action by T. R. Bennett, superintendent, etc., against J. D. Taylor and others. Verdict in favor of defendants' traverse to return of sheriff was directed, plaintiff's motion for new trial was overruled, and plaintiff brings error. Affirmed.

Wesley Shropshire, of Summerville, for plaintiff in error.

Denny & Wright and Graham Wright, all of Rome, and E. S. Taylor, of Summerville, for defendants in error.

BROYLES C.J.

The plaintiff in error brought suit in the city court of Summerville against Taylor and others on a promissory note. The sheriff returned an entry of personal service upon Taylor. At the first term of the court after the return Taylor filed a traverse to the return, and the sheriff was made a party. Upon the hearing of the issue thus made, the court directed a verdict in favor of the traverse, and such a verdict was returned by the jury. The plaintiff's motion for a new trial was denied, and to this judgment exceptions were taken. Upon the trial the only witnesses introduced were Taylor and the sheriff. Taylor testified as follows:

"On the date of the alleged service I was in the city of Atlanta. On my return the next day I found a copy of the petition and process on my office table in the Chattooga County Bank. I am president of the bank, and my office is in the bank. A day or so afterwards J. W. Alexander, the sheriff, came into my office. He asked me if Gene, who is my son, gave me the copy of the petition and process. I told him, 'No;' but I said to him, 'I acknowledge that I got the copy.' I am positive that I used no other language, for I was laying for him, expecting this very thing."

The testimony of the sheriff was as follows:

"On June 11th I was sheriff of Chattooga county, Ga. On that date, in the evening, I went to the office of John D Taylor in the Chattooga County Bank, to serve the process. He was not in the office [but] his

...