Payne v. Moore Finance Co., 34368
| Decision Date | 14 February 1953 |
| Docket Number | No. 34368,34368 |
| Citation | 87 Ga.App. 627,74 S.E.2d 746 |
| Parties | PAYNE v. MOORE FINANCE CO., Inc. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
A verdict and judgment rendered in a case where the officer serving a copy of the petition and process failed to show on the copy the date of the service on the defendant by dating and signing the copy, in the absence of waiver, is void and the court erred in not setting aside the judgment.
R.C. Scott and F. Jack Adams, Cornelia, for plaintiff in error.
Robert Harris, Toccoa, for defendant in error.
The only question in this case is whether a judgment against a defendant is void where he was personally served with a copy of petition and process, and the serving officer failed to show the date of service on such copy and sign it, and where the defendant did nothing to waive the omission. We think that the requirement of the Resolution passed by the General Assembly, Ga.L.1946, pp. 761, 769, Code Ann.Supp., § 81-202, providing that "Each copy served on a defendant shall show a date of service signed by the officer serving" is mandatory and jurisdictional in the absence of waiver of jurisdiction of the person. The Resolution of 1946 made a drastic change in the time when a defendant was required to file his pleadings. Formerly defensive pleading had to be filed at the return of the court in which the petition was filed. Such time was fixed as a matter of law and was in effect a part of the petition, process, and copies served. The Resolution requires the defendant to answer the suit within thirty days after the service of the petition and process. We think that it was the intention of the Supreme Court and General Assembly to require that the copy served on the defendant, as well as the return on the original petition, should show as a matter of information to the defendant the exact date of service, so that he can know exactly when his answer has to be filed without having to trust his memory in case of personal service, or resort to investigation in case of either kind of service permitted. There are many plausible arguments on both sides of the question. The strongest one against the conclusion we have reached is that a defendant should be required to show harm before he could take advantage of such an omission, whether service was personal or by leaving a copy at the defendant's residence. There are numerous cases which hold that the service must be as the law provides, even if the defendant does...
To continue reading
Request your trial
-
Dunn v. Dunn
...Inc., 189 Ga. 477, 479-480, 6 S.E.2d 579, 126 A.L.R. 1465; Davis v. Comer & Co., 108 Ga. 117, 119, 33 S.E. 852; Payne v. Moore Finance Co., 87 Ga.App. 627, 74 S.E.2d 746; Carroll v. Muller, 31 Ga.App. 209, 120 S.E. 548. Furthermore, so far as the record shows he did not know of the filing o......
-
Radcliffe v. Boyd Motor Lines, Inc.
...Co. v. May Investing Corp., 189 Ga. 477, 479(2), 6 S.E.2d 579; Dunn v. Dunn, 221 Ga. 368, 370, 144 S.E.2d 758; Payne v. Moore Finance Co., 87 Ga.App. 627, 628, 74 S.E.2d 746; American Photocopy, etc. v. Lew Deadmore & Associates, 127 Ga.App. 207, 209, 193 S.E.2d 275. That the defendant may ......
-
Jones v. Roberts Marble Co., 35188
...pp. 440, 450, which amended the Code, § 81-202, as to service of process, the law was as stated by this court in Payne v. Moore Finance Co., 87 Ga.App. 627, 74 S.E.2d 746, 747: 'A verdict and judgment rendered in a case where the officer serving a copy of the petition and process failed to ......
-
American Photocopy Equipment Co. v. Lew Deadmore & Associates, Inc., 47523
...119, 33 S.E. 852.' Piggly-Wiggly Ga. Co. v. May Investing Corp., 189 Ga. 477, 479, 6 S.E.2d 579, 580. In accord is Payne v. Moore Finance Co., 87 Ga.App. 627, 74 S.E.2d 746. 3. 'The failure of a foreign corporation to obtain a certificate of authority to conduct affairs in this State shall ......