Jones v. Jones
| Decision Date | 13 July 1953 |
| Docket Number | No. 18244,18244 |
| Parties | JONES v. JONES. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. Where an acknowledgment that a copy of the petition was received and a waiver of all other and further service are entered upon the petition, signed by the defendant before it is filed, and two days thereafter the petition is filed and the clerk issues process as therein prayed, attaching same to the petition, the waiver of service constitutes a legal waiver of the service of the process, and the judgment rendered therein is not void because process was not served upon the defendant. The decision by this court in Thacker v. Thacker, 167 Ga. 706, 146 S.E. 457, which is contrary to the above ruling, has been carefully reviewed and, for the reasons pointed out in the opinion, is considered unsound and is expressly overruled.
2. Where, after waiving service as above, the defendant executes a written agreement relating to alimony and custody of children, and also enters a consent that the case be tried at the appearance term, these actions are equivalent to appearance and pleading, under Code, § 81-209, and would waive process. Such conduct would also estop the defendant to attack the judgment rendered in the case.
On August 13, 1952, the defendant in the court below (now plaintiff in error), signed the following acknowledgment of service: Three days later the petition with the above service attached was filed with the Clerk of the Superior Court of DeKalb County along with a contract, signed by the parties, as to custody and alimony, asking that it be made a part of the final judgment and decree of the court, and a consent agreement that the case be tried at the first or appearance term. Process issued, and on the same date the agreement was made the order of the court. On the final judgment the court also made it a part of the final decree.
Subsequently thereto, the defendant made a motion to vacate and set aside the judgment and decree on numerous grounds, all of which were later abandoned except one which alleges that the record shows on its face that the movant had never been served with process nor waived same, and that for this reason the final decree is void and a nullity. The court denied the motion, and the exception here is to this judgment.
Hubert C. Morgan, Atlanta, for plaintiff in error.
William Hall and Barrett & Hayes, Atlanta, for defendant in error.
The major question for decision here is whether or not the acknowledgment of receipt of copy of the petition and waiver of all further service, dated August 13, 1952, constituted a waiver of service of the process which was issued by the clerk and attached to the petition when it was filed on August 16, 1952. On this question two decisions of this court, to wit, Thacker v. Thacker, 167 Ga. 706, 146 S.E. 457, and Fowler v. Fowler, 206 Ga. 542, 57 S.E.2d 593, both having the concurrence of all the Justices, are in irreconcilable conflict, the former holding that such waiver did not give the court jurisdiction to render judgment in the case, and the latter holding to the contrary. The conflict in those two decisions is apparently the reason why the instant case arose. We have been requested by counsel for the defendant in error to review and overrule the decision in the Thacker case, as the acknowledgment of receipt of copy and waiver of service was in all material respects the same in the two cases above cited and in the instant case. With the opposing parties relying upon the two decisions above, and the position of each finding support in the case relied upon, it is essential that this court meet that issue, perform its duty, and decide now which of those cases is sound and will be allowed to stand. We will not knowingly allow this conflict in our decisions to longer exist. We therefore accede to the request and review the decision in Thacker v. Thacker, 167 Ga. 706, 146 S.E. 457, supra.
The law requires service not simply for form or as a snare to trap litigants or to prevent an adjudication of a legal controversy, but its sole purpose is to put the defendant on notice that he is being sued and afford him ample opportunity to be heard on any defense that he may wish to make thereto. It is a right conferred upon a defendant for his own benefit and protection and he is free to waive it if he so chooses, Code, § 81-211. He may waive service before the petition is filed provided only that such waiver clearly identifies the suit to which it refers. Steadman v. Simmons, 39 Ga. 591; Weslow v. Peavy & Bros., 51 Ga. 210; Langford v. Driver, 70 Ga. 588; Henry & Co. v. Johnson, 178 Ga. 541, 173 S.E. 659. The bare petition with no process or rule nisi, when process is not waived, is not a suit upon which an adjudication will be made by the courts of this State. Code (Ann.Supp.), § 81-201, Ga.L.1946, pp. 761, 768. Every defendant when signing a waiver of service is charged with knowledge of this law. He therefore knows that such petition, as described above, is not a suit and that there is no provision of law for filing or serving such in the absence of waiver and, hence, no reason whatever for a defendant to enter thereon a waiver of service; but, since the petition prays for process and the defendant knows that the law makes it mandatory that the clerk attach thereto a process, a signed entry of waiver of service thereon is a plain expression of intent to waiver service of the process when issued. Beyond any wild speculative theory, it is perfectly obvious that in executing the waiver of service the defendant expects and intends that it shall be thereafter filed and that process issue as therein prayed and be attached thereto, for it is...
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