Benton v. Maddox
| Decision Date | 12 March 1936 |
| Docket Number | 24651. |
| Citation | 184 S.E. 788,52 Ga.App. 813 |
| Parties | BENTON v. MADDOX et al. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. While the contents of lost papers in a case on file in the clerk's office of the court may be established by copies of the same as they appear of record in the writ book required to be kept by the clerk of the court, this method of proof is cumulative only. Parol evidence is also admissible to establish the contents of the lost papers. The mere failure of the record, as appears in the writ book, to show the existence of a portion of the record of a lost paper is not conclusive of the nonexistence of the paper, but the existence and the contents of such lost portion of a record may be established by parol.
2. On the trial of an issue to establish lost papers in a case on file in the office of the clerk of the court where it appears from parol evidence introduced to establish copies of the lost papers that there was a return of service by the officer, but where from the evidence, which consists of the copies of the proceedings as contained in the writ book on file in the office of the clerk of the court, there appears no return of service upon the papers, evidence consisting of the records in other cases recorded in the same writ book immediately before and immediately after the record in the present case, in which there appears no record of a return of service, and evidence of the original papers in such cases which contain a return of service, are admissible.
3. On the trial of an issue formed on a motion to set aside a judgment on the ground that no service had been perfected on the defendant, there is a presumption from the rendition of the judgment that service had been perfected; and, where the record is silent as respects the perfection of service, the burden is on the one attacking the judgment to show that service had not been perfected.
Error from Superior Court, Putnam County; James B. Park, Judge.
Action by T. R. Bennett, Superintendent, etc., for the use of the Bank of Eatonton, against John D. Maddox, wherein the plaintiff obtained a judgment, and transferred an execution thereon to L. O. Benton, who caused the execution to be levied upon property of the defendant, who filed an affidavit of illegality. To review an adverse judgment, L. O. Benton brings error.
Reversed.
Statement of Facts:
L. O Benton, the transferee of an execution in favor of T. R Bennett, superintendent, etc., for the use of the Bank of Eatonton, against John D. Maddox in the principal sum of $682.27, caused the execution to be levied upon certain property as the property of the defendant in execution. The defendant, in an affidavit of illegality, attacked the validity of the judgment on which the execution issued on the ground that the defendant had never been served with the petition and process, had never waived service, had never appeared and pleaded, and had never authorized any one to do any of these things for him. The defendant alleged that the sheriff had made a return of service on the petition to the effect that the defendant had been duly served with the petition and process. The defendant traversed this return of the sheriff, and prayed that the sheriff be made a party. Later, by amendment to the affidavit of illegality, the defendant struck the allegation that the sheriff had made a return of service and dismissed the sheriff as a party to the case.
On the trial it appeared that the original papers were lost. The plaintiff in fi. fa. offered the testimony of the sheriff to the effect that he had served a copy of the petition and process on the defendant and had made a due and legal return of service on the original petition and process at the proper time, and had returned the petition and process with his return of service thereon to the clerk, that he had made a written memorandum of these facts at the time and had this memorandum with him. This evidence the court excluded on the ground that the facts sought to be proved could not be established by parol. There was introduced in evidence the portion of the illegality which had been stricken to the effect that the sheriff had made a return of service on the petition, that he had served the defendant with a copy of the petition and process on a named date, and that the defendant alleged that the return was untrue. There was also introduced the record of the proceedings in the case as appeared in the writ book in the office of the clerk of the superior court which record did not contain any copy of any...
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