Fincher & Womble v. Hanson
| Decision Date | 16 April 1913 |
| Docket Number | 4,619. |
| Citation | 77 S.E. 1068,12 Ga.App. 608 |
| Parties | FINCHER & WOMBLE et al. v. HANSON. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
Where a motion to vacate a judgment was made by one of two persons against whom the judgment was rendered, upon the ground that the movant had never been served, nor waived service, and the motion was overruled, the correctness of this ruling was brought in question in the Court of Appeals by an assignment of error in the following language: "To this ruling and judgment of the court so made, overruling said motion to strike said Fincher from said judgment, the defendant J. C Fincher then and there objected and excepted, and now objects and excepts to said ruling and judgment of the court, and assigns said ruling of the court as error on each and all the grounds in said motion to strike contained."
An individual defendant cannot be served by leaving a copy of the petition and process "at his office"; and an entry by the sheriff that this had been done is no evidence of service.
A judgment finding that the complaining defendant had not been properly served, and had not waived service, was demanded and the court erred in refusing to vacate the judgment as to this defendant.
No error of law was committed, and the evidence authorized the verdict in the plaintiff's favor.
Error from City Court of Ashburn; R. L. Tipton, Judge.
Action by F. J. Hanson against Fincher & Womble and others. Judgment for plaintiff, and defendants bring error. Affirmed in part and reversed in part.
John B Hutcheson and A. S. Bussey, both of Ashburn, for plaintiffs in error.
Haygood & Cutts, of Fitzgerald, and Jas. H. Pate, of Ashburn, for defendant in error.
Suit was brought in the county court of Worth county by Hanson against Fincher and Womble, a partnership alleged to be composed of J. C. Fincher and G. R. Womble. There was an entry of personal service as to Womble, and the following entry of service upon Fincher: "I have also served Fincher, the other defendant, with a true copy of the within original, by leaving the same at his office." An answer was filed which began thus: "And now come the defendants Fincher & Womble and make answer as follows." Then followed an answer by paragraphs, in which it was recited that the "defendants Fincher & Womble" admitted or denied the respective allegations in the petition. The answer concluded as follows: Upon the establishment of the city court of Sylvester the case was transferred to that court, and upon the creation of Turner county the case was docketed in the city court of Ashburn. At the trial term an amendment to the answer was allowed. This amendment, after stating the case as "F. J. Hanson v. Fincher & Womble," begins: "And now comes the defendant in the above-stated case," and then follows the recital of certain special defenses. The amendment is signed, "John B. Hutcheson, Defendant's Attorney." On the trial the jury returned the following verdict: Upon the verdict the plaintiff signed up judgment against Fincher & Womble, as a partnership, and against the individuals composing the firm, namely, J. C. Fincher and G. R. Womble.
Fincher filed a motion to vacate the judgment as to him, upon the ground that he had never been served and had never waived service, either by appearance and pleading or otherwise. Upon the hearing of this motion the plaintiff introduced in evidence a certain petition addressed to the city court of Sylvester. This petition purported to be in the name of Fincher & Womble, a partnership consisting of J. C. Fincher and G. R. Womble. It recited that F. J. Hanson had brought suit against the defendants in the county court of Worth county, and that a default judgment had been entered in the city court of Sylvester against the partnership and the individual partners, and prayed that the default judgment might be set aside, for reasons set forth in the petition. It does not affirmatively appear whether this judgment was ever set aside; but, assuming that this petition referred to the suit in which the judgment now complained of was rendered, it is necessarily to be presumed that the default judgment was set aside. In the petition to set aside the default judgment it was recited that the original petition in the case had been duly served, and that "the defendants," by their attorney, J. A. Comer, duly filed their answer in court, Mr. Comer testified that he was of counsel for "Fincher & Womble" when the case was pending in the city court of Sylvester; that he could not recall which one of the partners employed him, but that he conferred with both, and presumed that he was representing one as much as the other; that he did not remember whether Fincher was sworn on the trial or not, but thought that he was probably present in court and assisted in the trial of the case. This was all of the evidence before the trial judge, and after hearing it, he declined to set aside the judgment as to Fincher.
1. The assignment of error as quoted in the first headnote is sufficiently specific to bring in question the correctness of the ruling complained of. The bill of exceptions specifies all the pleadings necessary for the consideration of the motion, sets out all of the evidence heard by the trial judge, sets forth the judgment complained of, and then assigns error upon this judgment. The point is made that the assignment of error should have pointed out whether the movant complained of the judgment because there was no sufficient evidence to support it, or whether it was erroneous as a matter of law. There is a line of decisions which hold that, where a case has been submitted to the presiding judge without the intervention of a jury, either upon an agreed statement of facts or upon evidence offered by either or both parties, the assignment of error should point out whether the plaintiff in error intends to complain that the judgment was contrary to the evidence, or that it was erroneous for some other reason. Those decisions, however are not controlling...
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