Evans v. Smith

• Decision Date: 07 May 1897
• Parties: EVANS v. SMITH.
• Court: Georgia Supreme Court

28 S.E. 617

101 Ga. 86

EVANS v. SMITH.

Supreme Court of Georgia

May 7, 1897

Syllabus by the Court.

Where upon the traverse of a sheriff's return of service of a declaration, it is neither alleged in the traverse nor proved on the trial that the traverse of the official return was filed at the first term of the court after notice to the party complaining of the return called in question, a verdict sustaining the traverse and vacating the return is contrary to law, and, on motion for a new trial, should be set aside.

Error from superior court, Gwinnett county; N. L. Hutchins, Judge.

Action by J. H. Evans against George E. Smith. Judgment for plaintiff, which he moved to set off against a judgment against him in defendant's favor. From a verdict on the traverse for defendant and an order refusing a new trial plaintiff brings error. Reversed.

Juhan & McDonald, for plaintiff in error.

C. H Brand and T. M. Peeples, for defendant in error.

SIMMONS C.J.

It appears from the record that Smith obtained a judgment against Evans, and that Evans, at the March term, 1895, of the superior court of Gwinnett county, obtained a judgment against Smith. At the "May adjourned" term, 1895, Evans moved to set off his judgment against Smith's, whereupon Smith filed a traverse to the return of service of the sheriff in the suit of Evans against Smith, and in this traverse alleged that at the time the return was made he was not a resident of the state or county, but was a resident of the state of Kentucky, and that the judgment rendered against him was void for the want of jurisdiction of the court. This was the only issue made at the trial. The jury returned a verdict in favor of the traverse. Evans made a motion for a new trial. It was overruled by the court, and Evans excepted.

Section 4988 of the Civil Code provides that "the entry of the sheriff, or any officer of the court, or his deputy, may be traversed by the defendant at the first term after notice of such entry is had by him, and before pleading to the merits." The traverse filed by Smith against the return of the sheriff does not say, hint, or intimate when Smith had notice of the return of service the sheriff had made. We have carefully read every word of the evidence contained in the record, and there is not a word by Smith or any of his witnesses as to the time he received notice of the return. The only reference made by him, in his testimony, to this essential issue (i. e. when he had notice of the return), is in his testimony when he was called in rebuttal. He then says that he never knew anything about the pendency of the Evans' suit against him until after he returned from Kentucky to Georgia,...