Davant v. Carlton

• Decision Date: 31 July 1874
• Citation: 53 Ga. 491
• Parties: James M. Davant, executor, et al, plaintiff in error. v. Richard G. Carlton, defendant in error.
• Court: Georgia Supreme Court

53 Ga. 491

James M. Davant, executor, et al, plaintiff in error. v. Richard G. Carlton, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1874.)

Judgments. Service. Presumptions. Attorneys. Before Judge BartlETT. Greene Superior Court. March Term, 1874.

This case is sufficiently reported in the above head-notes.

REESE & REESE, for plaintiffs in error.

P. B. Robinson; M. W. Lewis & Son; C. L. Bartlett, for defendant.

McCay, Judge.

1. By the common law, the entry of the sheriff, in a case like this, was conclusive: Higgs v. Huson, 8th Georgia, 321. *The party injured, if the return was false, had his remedy against the sheriff. Our Code, section 3340, provides that the entry of service is traversable. The evils of such a practice, at least, after judgment, are so manifest, especially since the defendant may now be a witness, that we think the public interest requires the strongest proof that the entry is false, before it should be set aside. That same public policy that made such an entry conclusive, should, now that it is made traversable, give it high rank as evidence when it is sought to be contradicted. The statute itself, Code, section 3340, declares that unless done at the next term after the party has notice of it, he cannot do it afterwards. The negative statement of a party that he never was served, bears no comparison in strength with the entry itself. It is, in the first place, the sworn entry at the time, of an officer of the court, with no interest to enter contrary to the fact, and with no motive on even occasion to do so. If the entry be untrue, he is liable for damages as well as punishment. That the sheriff cannot now call up the act of service, is very natural, and is of but; very slight importance, and that the defendant can say positively that this service was not made seven years ago, is morethan most men would be willing to say in the face of this entry. State it as strongly as he may, it is, at last, only negative testimony; a statement that he does not remember to have been served; true, he says, in terms, he was not, but all he can mean is that he has no memory of it. The reasons he gives are only arguments why his failure to remember the fact should have strength. If an entry of service by the sheriff is to be set aside by the oath of the defendant seven years after it is made, then a judgment is but a poor record. As we have said we think, in the nature of things, such an entry is very strong...