Jones v. Bibb Brick Co

• Decision Date: 08 June 1904
• Citation: 48 S.E. 25,120 Ga. 321
• Parties: JONES v. BIBB BRICK CO.
• Court: Georgia Supreme Court

48 S.E. 25

120 Ga. 321

JONES

v.BIBB BRICK CO.

Supreme Court of Georgia.

June 8, 1904.

PROCESS — RETURN — GARNISHMENT—DEFAULT JUDGMENT—AMENDMENT—SETTING ASIDE JUDGMENT.

1. While process and service are essential to confer jurisdiction, and the return is only evidence of service, yet there should be in the record a return by the officer showing that the process has been served, and that thereby the court has acquired jurisdiction of the person.

2. If there has been in fact valid service, and no return, or a void return, no default judgment should be entered.

3. If there has been good service, but an irregular or incomplete return, the defect may be cured by an entry making the return conform to the facts, and thus save what is in reality a judgment based on valid service.

4. Such amendment may be made by the officer voluntarily while he remains in commission, or nunc pro tunc by order of the court. Civ. Code 1895, §§ 5116, 5117.

5. If the return is incomplete, and the officer seeks to amend so as to cure the defect, the defendant may raise an issue as to the validity of the service, and on satisfactory evidence may prevent the amendment, or on similar proof in a direct attack thereon may have the judgment set aside.

6. In such direct proceeding to set aside a judgment based on a defective return, the movant cannot rely on the incompleteness of the return, but must affirmatively show that the service actually made was not such as is required by the statute.

7. In the present case the motion to set aside the default judgment showed affirmatively that the garnishee had been properly served, and thereby made it unnecessary to amend the return, which was incomplete and defective in failing to allege that M., "its secretary and treasurer, " was in charge of the defendant's office and business in the county.

8. A promise by the officer that he would notify the garnishee when to answer, and "sheer ignorance" on the part of the agents of the company that it was necessary to answer, afford no legal excuse for failure to answer at the time fixed by law.

9. The garnishee is required by statute to answer at the first term. After the second term the court has no discretion, but can only allow the answer to be then filed for some reason legally sufficient to excuse the failure.

10. If the existing default judgment had been set aside, a new judgment by default would of necessity have been entered against the garnishee, no legal reason being offered to excuse the failure to answer before the expiration of the second term.

(Syllabus by the Court.)

Error from City Court of Macon; Robt. Hodges, Judge.

Action by C. L. Jones against Earnest & Eubanks. Garnishment served on the Bibb Brick Company. Judgment for garnishee, and plaintiff brings error. Reversed.

Jones brought suit against Earnest & Eubanks in the city court of Macon. On August 23, 1902, he made a garnishment affidavit and bond, and on August 25, 1902, the officer returned that he had served summons of garnishment "on Bibb Brick Co. by handing the same to John T. Moore, its secretary and treasurer, at G:03 o'clock p. m., August 23, 1902." The summons was returnable to the quarterly term of the city court, which met in December, 1902. On June 11, 1903. there was a verdict in favor of the plaintiff, and judgment nunc pro tunc was entered thereon September 15, 1903. Thereafter, and on the same day, judgment was entered against the garnishee, it being recited therein "that summons of garnishment during the pendency of said suit was duly issued and served upon the Bibb Brick Company as garnishee, * * * returnable to the December term, 1902, of this court; and it further appearing that neither the said Bibb Brick Company nor * * * has made any answer to the summons served upon them." During the same term the Bibb Brick Company filed a petition reciting that in August, 1902, Motes, constable for Jerdine, justice of the peace, served John T. Moore, secretary and treasurer of the petitioner, with a summons of garnishment; Moore, acting for petitioner, then and there stating to Motes that petitioner had nothing subject to garnishment, and would not become indebted; whereupon Motes stated that petitioner would have no trouble about tbe garnishment, and that he would notify petitioner when the case came up; that petitioner believed that the summons was returnable to the 5G4th district justice's court, and not to the city court; that the summons had been mislaid, and that petitioner might be mistaken, and the garnishment may in fact have been returnable to the city court; that, relying on Motes' promise that he would notify petitioner when it was necessary to answer, and being in ignorance of the law requiring it to answer when it was not indebted, and had nothing belonging to the defendant, petitioner failed to answer in the city court; that it was not indebted, and had nothing belonging to the defendant at the time of the service, or at the time of the judgment, or at any intervening time, and that it would be a great hardship and contrary to equity to compel it to pay the judgment; that it failed to answer the garnishment from sheer ignorance of the law and its duty, and relying on the promise of Motes, and in ignorance of the fact that any garnishment was pending in the city court, and that it never heard of the case from the time the summons was served on it until after the judgment had been taken; that it tendered this as its answer to the garnishment, and moved the court to open and set aside the judgment by default. This motion was verified by John T. Moore on October 5, 1903, and filed the same day. On October 17, 1903, the plaintiffs filed their demurrer to the motion to set aside. On the same day the Bibb Brick Company filed an amendment verified by J. N. Neel (whose agency does not appear), and showed as additional grounds of the motion to set aside that the return of the officer did not show that the garnishment was served upon one who was the agent in charge of the office or business of the company; and "that the said summons * * * was not served upon the proper officer of your petitioner, because the same was served upon the secretary and treasurer of said company, and not upon its president, nor upon the other and proper officer"; that the name of the garnishee is "The Bibb Brick Company, " and not "Bibb Brick Company." The court sustained the motion, and ordered that the judgment against the Bibb Brick Company be set aside, and that the garnishee have leave to file its answer to the garnishment, to which judgment Jones, the plaintiff, excepted.

Ross & Grace, for plaintiff in error.

Minter Wimberly and Jesse C. Harris, for defendant in error.

LAMAR, J. A summons of garnishment directed to the Bibb Brick Company was served August 23, 1902, the return of the officer showing that he had served the summons on "Bibb Brick Co. by handing the same to John T. Moore, its secretary and treasurer." No answer was filed at the December term, 1902, of the city court of Macon. After judgment against the defendant reciting that "summons of garnishment * * * wasduly issued and served upon the Bibb Brick Company as garnishee, " and that no answer had been filed, the court, on September 15, 1903, entered judgment against the brick company by default. This was during the fourth term, and more than a year after the service of the garnishment. The motion to set this Judgment aside is verified by Moore, and does not deny that he was in charge of the office or of the business of the company in the county. The original motion conceded the service, and offered to answer instanter, and thereupon asked to have the default opened because of the hardship, and because the company had acted in ignorance of the law. Even the amended motion fails to allege that Moore was not in charge, though it was therein contended that the service ought to have been on the president or other proper officer, without showing who was the proper officer, or alleging that the president was in the county at the time of the service. Not only is there no attack upon the validity of the service, but the movant treats it as valid, and asks to have the default opened, and for a hearing on the answer. The judgment on the motion also treats the service as valid, and allows the garnishee to answer. We are therefore to deal with a case in which the return of the officer, who had made a good service, was incomplete and defective in its failure to allege that Moore, "secretary and treasurer, " was "in charge of the office or business" of the garnishee at the time the summons was handed to him in person.

1-7. Process and service are essential. But the return, being only evidence of what the officer has done in serving the writ, is not jurisdictional. Still It is manifest that a court ought not to proceed without having a legal return of record to show that its process had been actually served, and that it had acquired jurisdiction over the person of the defendant. If there is an entire absence of a return, or if the return made is void because showing service upon the wrong person, or at a time, place, or in a manner not provided by law, the court cannot proceed. Callaway v. Douglasville College, 99 Ga. 623, 25 S. E. 850. If,...