Lassiter v. Carroll

• Decision Date: 19 October 1891
• Citation: 87 Ga. 731,13 S.E. 825
• Parties: Lassiter v. Carroll.
• Court: Georgia Supreme Court

13 S.E. 825

87 Ga. 731

Lassiter

v.Carroll.

Supreme Court of Georgia.

Oct. 19, 1891.

Service of Process.

Where there was an original process attached to the declaration which was not copied and served on the defendant, the declaration alone being served, it was competent for the court, on motion of the plaintiff's counsel, to order the original process to be made returnable to the next term of the court, and that a copy be served on the defendant, notwithstanding the defendant had made a motion to dismiss the action.

(Syllabus by the Court.)

Error from city court of Atlanta; Howard Van Epps, Judge.

Action by Mattle Carroll against M. E. Lassiter. From an order overruling defendant's motion to dismiss the action, she brings error. Affirmed.

R. L. Rodgers, for plaintiff in error.

Simmons & Corrigan, for defendant in error.

Simmons, J. The exceptions in this case were to an order of the court below overruling a motion to dismiss the case for lack of service, and granting time to perfect service. It appears that the defendant was served with a copy of the declaration, but no copy of the process was attached thereto, further than a printed form of process, with blanks not filled, and without the signature of the clerk. Regular process, however, was annexed to the declaration as filed, and upon this was an entry by the sheriff that the defendant had been served with a copy. At the appearance term the defendant traversed this return, and moved to dismiss as above stated. The court held that the defendant had not been properly served, but ordered that the original process be amended so as to be made returnable to the next term as the appearance term of the case, and that a copy of the declaration and of the process as amended be served on the defendant in terms of the law. We think the court had the right to do this. In the case of Peck v. La Roche, 86 Ga. 314, 12 S. E. Rep. 638, relied upon by counsel for the plaintiff in error, the question was not as to the power of the court to amend process, and extend the time for service; but as to the power of the clerk, without an order of court, to substitute for the original process a second returnable to another term. The other authorities relied upon, in which there was no original process, are inapplicable to this case. McGhee v. Mayor, etc., 78 Ga. 790, 3 S. E. Rep. 670; Ballard v. Bancroft, 31 Ga.503; Reynolds v. Lyon, 20 Ga. 225; Brady v. Hardeman, 17 Ga. 67. It is clear that the entire absence of process cannot be supplied by amendment; but where there is original process, as in the present instance, it is in the...