Johnson v. Jones

• Decision Date: 23 March 1891
• Citation: 13 S.E. 261,87 Ga. 85
• Parties: Johnson et al. v. Jones et al.
• Court: Georgia Supreme Court

13 S.E. 261

87 Ga. 85

Johnson et al. v. Jones et al.

Supreme Court of Georgia

March 23, 1891

Syllabus by the Court.

1. The act of 1885, amending section 4185 of the Code, providing for service of certain proceedings by publication, is unconstitutional, because it "contains matter different from what is expressed in the title thereof."

2. A deed without witnesses is legal and binding between the parties thereto and those claiming under them as mere volunteers.

3. Where defendants, residing in another state, were not served by publication according to law, and at the proper time filed a plea to the jurisdiction of the court upon this ground, and it appearing that such plea was true in fact, it was error to overrule the same.

Error from superior court, Fulton county; M. J. Clarke, Judge.

Lumpkin J.

1. An act was approved October 15, 1885, (Acts 1884-85, pp. 56 57,) the title of which declared that it was an act to amend section 4185 of the Code by adding after the words "four months" therein the following words, "which order to perfect service may be granted by the judge in vacation." This is all the amending act, by its title proposed to do to the section mentioned, viz., simply to insert the quoted words in the section at the place designated. In the body of the act it is enacted that these words shall be so added, and the act then proceeds to assert that the original section, when so amended, shall read a certain way. The difficulty about it is that the section when so amended, does not read that way, but, on the contrary, the words, "twice a month for two months," are substituted for the words, "once a month for four months," occurring in the section. No hint is given, either in the title of the act or in the enacting part thereof, that this change or substitution will be made. Indeed, the act does not any where directly declare that such change shall be made; it only incorrectly says that such a change shall result from introducing certain words into the section. Therefore, as the title expresses distinctly, explicitly, and unequivocally the precise words which shall be added to the section to be amended, and the body of the act, in the indirect manner indicated, makes another and entirely distinct and important change in the section, it follows inevitably that the act "contains matter different from what is expressed in the title thereof," and this the constitution plainly forbids. Code, § 5067. An examination of the act, in connection with this section of the Code, will readily disclose the defect herein discussed.

2. The only question disclosed by the record which can be of any consequence to the plaintiffs in error is whether or not a deed having no witnesses is good between ...