Love v. Nat'l Liberty Ins. Co

• Decision Date: 17 January 1924
• Docket Number: (No. 3557.)
• Citation: 157 Ga. 259,121 S.E. 648
• Parties: LOVE et al. v. NATIONAL LIBERTY INS. CO.
• Court: Georgia Supreme Court

157 Ga. 259

121 S.E. 648

LOVE et al.

v.NATIONAL LIBERTY INS. CO.

(No. 3557.)

Supreme Court of Georgia.

Jan. 17, 1924.

(Syllabus by the Court.)

Error from Superior Court, Chatham County; P. W. Meldrim, Judge.

Action by J. W. Love and others against the National Liberty Insurance Company. Judgment for defendants, and plaintiffs bring error. Reversed in. part and affirmed in part.

Chas. E. Donnelly, Oliver & Oliver, and John Z. Ryan, all of Savannah, for plaintiffs in error.

Smith, Hammond & Smith, of Atlanta, and Lawton & Cunningham, of Savannah, for defendant in error.

GILBERT, J. 1. [1] The controlling question in this case is whether the return of service on the defendant by the sheriff, as to the petition and process, shows a void or only defective service. The defendant insists that the "return" of the sheriff was void, or, in other words, that it does not show any return of the petition and process; and that in such a case it does not matter whether the defendant was actually served in a legal manner or not. Defendant further insists that a legal return of service is required, to give the court jurisdiction; and that legal service means serving the defendant with a copy of the petition and a copy of the process attached to the petition. The return of service in this case was as follows:

"State of Georgia, Chatham County. Sheriff's Office, June 7/21. I have this day served the within writ of injunction upon the within named defendant, National Liberty Ins. Co., by handing a copy of the same to Otto S. Seiler, Agt., in charge of said company, in person, at 1:10 p. m. The return of J. L. Wilder, D. S. C. C, Ga."

If this return of service shows fatally defective service, or an entire absence of a return of service, the court would have no authority to enter a judgment against the defendant. This leads us to a critical examination of the return. The criticism is that the return does not show that the company was served with copy of the petition and process; and that is the only defect pointed out. The return of the sheriff names the company as the defendant served by him, and furthermore shows that the service was made by handing a copy of the "writ of injunction" to a named agent of the company. What, therefore, is meant by the phrase "writ of injunction, " used by the deputy sheriff? In Carey v. German American Insurance Co., 84 Wis. SO, 54 N. W. 18, 20 L. R. A. 267, 36 Am. St. Rep. 907, a suit on a policy of in surance, the meaning of the word "writ" was brought in question. There it was said:

"All writs are called 'process' in the statutes. A writ is process, and process is a writ, interchangeably." 12 R. C. L. 1261, § 2; 32 Cyc. 419, note 1.

It may be argued that thus defined the words in the sheriff's return, "writ of injunction, " could mean no more than "process of injunction." We will thus apply the term. In response to the prayer of the petition of the insurance company the court in the present case arrested the former judgment, citing as authority the case of Pennsylvania Casualty Co. v. Thompson, 123 Ga. 240, 51 S. E. 314. The return of service in that case was as follows:

"I have this day served E. T. Moore, agent, personally, with a copy of the within bill and process."

It will be observed that the return of service does not indicate the name of the principal. The suit was against the Pennsylvania Casualty Company, but the name of the defendant did not appear in the return of sevice. The court held:

"According to the original entry of service, only E. T. Moore as an individual had been served, * * * and the judgment by default was void, as the court had no jurisdiction to render it, the defendant company not having been served. * * * It follows that the motion by the defendant company to dismiss the case should have been sustained, * * * if the return of the sheriff had not been amended. The return, however, was amendable so as to include all the facts of a good service, if such facts existed; such as that Moore was the agent of the defendant company, and that the company had been served by personally serving him as its agent."

Although the court in that case said the "judgment by default" was void, as the court had no jurisdiction to render it, it was further said that the return was amendable. Nothing further appearing, the two statements seem to be inconsistent. If the return was amendable, the service was not void, and the court was not without jurisdiction. In order to clear up this seeming inconsistency, reference has been had to the original record. It appears there that the expression "judgment by default, " as used in the opinion, is misleading. The facts, according to the record, show that at the appearance term the case was "marked in default, " and, when the court stated that "judgment by default was rendered at the appearance term, " the court should have said that the case was marked "in default." Civil Code 1910, § 5653. The marking of the case in default is a Judgment, but not a "judgment by default." At most it can only be a judgment to the effect that the case is "indefault, " and in no sense is it a rendition of a final judgment against the defendant in response to the prayers of the petition. The record not only shows that no final judgment for the plaintiff was rendered at the appearance term (it could not have been done), but it recites that at the trial term the defendant "moved to open the default, " which is conclusive evidence that the court at the appearance term merely marked the case "in default, " and did not render a final judgment against the defendant. The defendant excepted to the refusal of the court to "open the default, " and the judgment was reversed by this court on that assignment of error alone. Subsequently to the ruling of the trial court refusing to open the default the sheriff was allowed to amend his entry of service so as to make it complete in every respect; and thereafter, during the progress of the case, the return of service, as amended, was no longer questioned. The question of an arrest of judgment was not involved in the Pennsylvania Casualty Co. Case.

In Artope v. Barker, 74 Ga. 462, it was said:

"A motion to set aside a judgment, like a motion in arrest, must be grounded on defects apparent on the face of the record, which are not amendable. It differs from a motion in arrest of judgment only in that the latter must be made during the term when the judgment was rendered, while a motion to set aside a judgment can be made at any time within the period of the statute of limitations." Regopoulas v. State, 116 Ga. 506, 42 S. E. 1014; Ford v." Clark, 129 Ga. 292, 293, 58 S. E. 818.

Both must be predicated upon some defect apparent upon the face of the record. Civil Code 1910, § 5958; Williams v. O'Neal, 119 Ga. 175, 177, 45 S. E. 978; Sweat v. Latimer, 119 Ga. 615, 46 S. E. 835. It follows that the question of sufficiency of service is the same, whether it is attacked by motion to arrest or motion to set aside. The early rulings of this court on the subject of process were very " 'strict, ' * * * looking back upon them some of the judges doubted whether they were not overstrict." Note to Hartridge v. McDaniel, 20 Ga. bottom of page 399; Wynn v. Booker, 22 Ga. 359. The statutes now provide great liberality in the matter of amendments as to pleadings, process, and other proceedings. Civil Code 1910, § 5681 et seq. The statutes embodied in these sections of the Code, to a very great extent, are derived from the act of 1818 (Cobb's Dig. p. 4S7; Prince's Dig. p. 442; Wynn v. Booker, 22 Ga. 363), which amended and explained the existing judiciary act. The preamble to that act is as follows:

"Whereas the said judiciary was intended for the purpose of bringing parties litigant to a speedy judicial decision, without delay, and with as little costs as practicable, and it was thereby intended, that the small omissions of parties clerks or sheriffs, not affecting the real merits of the cause, should in all cases (substantially set out) be amended on motion, without delay or costs, and it having grown into practice in said courts to give or grant a term, and sometimes nonsuit, for the smallest omissions of the officers of the said courts, and as a further increase of the said practice may lead us back to all that tedious and expensive labyrinth of special pleadings which the said judiciary intended to avoid."

The first section of the act declared:

"That in every case where there is a good and legal cause of action, plainly and distinctly set forth in the petition, and there is in substance a copy served on the defendant or defendants, or left at their most notorious place of abode, every other objection shall be, on motion, amended without delay or additional costs."

"When a judgment has been rendered, either party may move in arrest thereof, or to set it aside for any defect not amendable which appears on the face of the record or pleadings." Civil Code 1910, § 5957.

If the defect is such that no legal judgment can be rendered, the judgment will be arrested or set aside. Section 5959.

"A judgment cannot be arrested or set aside for any defect in the pleadings or record that is aided by verdict, or amendable as matter of form." Section 5960; Winn v. Butts, 127 Ga. 385 (2), 56 S. E. 406; McDonald v. Kimball, 144 Ga. 105 (2), 86 S. E. 234.

It should be borne in mind that the court held the return of service in the Pennsylvania Casualty Co. Case, supra, to be amendable; and therefore it follows that the service in that case was merely irregular, and was not so defective that a legal judgment could not be rendered. In that case the name of the defendant did not appear; the return was amended before verdict.

In Jones v. Bibb Brick Co., 120 Ga. 321, 48 S. E. 25, there was a motion to set aside a judgment, on the ground of a defective return of service. There was a garnishment affidavit and bond, based on a suit brought in the city court of Macon. The...