Gifford v. Jackson
| Decision Date | 19 November 1962 |
| Docket Number | No. 39541,No. 1,39541,1 |
| Citation | 129 S.E.2d 181,107 Ga.App. 44 |
| Parties | T. F. GIFFORD v. Wilbur JACKSON et al |
| Court | Georgia Court of Appeals |
Sam Calhoun, Jr., Chatsworth, Walter H. Bolling, Dalton, for plaintiff in error.
H. E. Kinney, Pittman & Kinney, Dalton, for defendant in error.
Syllabus Opinion by the Court
Plaintiffs' action for breach of contract contained a prayer that process issue requiring the defendant to appear and answer the complaint at the Superior Court of Whitfield County, Ga., although the action was brought in the Superior Court of Murray County. The process issued was directed to the sheriff of Whitfield County and required the defendant to appear in the superior court of that county. Two days after the return of service the court allowed an amendment offered by the plaintiffs to amend the prayer in the petition so that the process prayed for would be directed to the Sheriff of Murray County. Although the prayer was amended, the Clerk of the Murray Superior Court never complied with the amended prayer and no proper process was issued or served in accordance with the amendment. This left the only process in the action that which had been issued and served prior to the amendment to the petition.
If there is no prayer for process contained in the petition, although the clerk affixes thereto what purports to be process which is served upon the defendant, the action of the clerk in affixing the purported process is not authorized and the process and its service are void. Seisel & Co. v. Wells, 99 Ga. 159(1), 25 S.E. 266. See also Burch v. Crown Laundry, 78 Ga.App. 421(1), 50 S.E.2d 768; Id., 205 Ga. 211, 53 S.E.2d 116. See generally Leverett, Hall, Christopher, Georgia Procedure & Practice, § 2-15.
Further, when the copy of process served upon the defendant is made returnable to the wrong court, it is not void but merely defective and amendable. Stansell v. Grant, 77 Ga.App. 126, 48 S.E.2d 386. In the present case while there was an amendment to the prayer for process so that proper process was prayed for, it was never issued. The process which was issued, by analogy to the authorities cited above, was defective and the amendment did not cure the defect contained in the process previously issued.
The plaintiffs urge that since the defendant at the call of the case contended that service of the process was bad since it was directed to the sheriff of another county than that in which the case was pending, he waived any objection to the validity of the process citing Americus Grocery Co. v. Brackett & Co., 119 Ga. 489(7), 46 S.E. 657; and Harrison v. Lovett, 198 Ga. 466, 31 S.E.2d 799. As to this case the only holding that could possibly be germane in Brackett is the ruling that the defendant waived its right under a special demurrer to the petition by proceeding to trial without insisting upon a ruling on the demurrer. We do not consider Brackett's...
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Schafer v. WACHOVIA BANK OF GEORGIA, NA
...arises within 30 days of service unless the objection is properly raised. See OCGA § 9-11-12(b)(4), (5), (h)(1); Gifford v. Jackson, 107 Ga.App. 44, 45, 129 S.E.2d 181 (1962). Here, the Schafers failed to properly and timely raise such defense in abatement. The CPA, as a matter of sound jud......