Peck v. La Roche

• Decision Date: 10 December 1890
• Citation: 12 S.E. 638,86 Ga. 314
• Parties: PECK v. LA ROCHE et al.
• Court: Georgia Supreme Court

12 S.E. 638

86 Ga. 314

PECK v. LA ROCHE et al.

Supreme Court of Georgia

December 10, 1890

Syllabus by the Court.

1. There being but one suit, one petition, one defendant, the clerk has no power, without some direct and express order of the court, to issue more than one process. A second process issued by him of his own will, after the appearance term of the case, is void.

2. Formal entries of continuance made by the judge on the bench docket at and after the appearance term do not import any leave or order to issue a second process, or extend the time for service.

3. Standing alone, a process is no legal authority to the sheriff to serve the defendant after the appearance term; and where the defendant appears at the first term after the actual service, and, without pleading to the action, moves to dismiss the same for want of due service, the motion should be granted. Though acquiescence in such defective service might bind the defendant, no acquiescence can be implied when the objection is made promptly by a motion to dismiss.

Error from city court of Savannah; HARDEN, Judge.

Lester & Ravenel, for plaintiff in error.

W. P La Roche, for defendant in error.

BLECKLEY C.J.

The declaration was filed April 11, 1889. The first process was dated on that day, and was returnable to the May term of the city court. After the July term had intervened, a second process was issued by the clerk of his own will, and without any order of the court on the subject, dated October 14 1889, and made returnable to the November term. Personal service was effected upon the defendant on the next day after the second process was issued. No service except this was returned, nor was there any return of non est inventus and the court, so far as appears, had up to that time taken no action touching the case, except to enter on the bench docket two continuances,--one on June 4th; the other on July 1st. At the November term, to which the second process was returnable, the defendant appeared by counsel, and, without admitting jurisdiction, moved in writing to dismiss the petition and process because the petition was filed in April, and process issued returnable to May term, but was not served until October. The motion also recited the further fact that new process was attached returnable to November term. Pending this motion, another continuance was entered on the docket, dated January 10, 1890. On February 12th the motion was overruled by the court. The statute applicable to the city court of Savannah provides that "all suits in said court (except attachment cases) shall be commenced at least fourteen days before the term to which they are returnable, and the process shall be served on the defendant at least ten days before the session of the court. Suits shall in other respects be conformable to the mode of proceeding in the superior courts, but the process shall be annexed by the clerk of said city court, be tested in the name of the judge thereof, and be directed to, and served by, the sheriff thereof." Code, § 4918. The general law applicable to the superior courts requires that "to such petition the clerk shall annex a process, unless the same be waived, signed by the clerk or his deputy, and bearing teste in the name of a judge of the court, and directed to the sheriff or his deputy, requiring the appearance of the defendant at the return term of the court." Code, § 3334. "The clerk shall deliver the original petition, with process annexed, together with a copy of the petition and process for each defendant, to the sheriff or his deputy, who shall serve such copy upon each defendant residing in the county at least fifteen days before the first day of the term, and within five days from the time of receiving the same, and make an entry of such service upon the original petition, and return the same to the clerk." Code, § 3339.

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