Perry v. Tumlin

• Decision Date: 17 December 1925
• Docket Number: 4720.
• Citation: 131 S.E. 70,161 Ga. 392
• Parties: PERRY v. TUMLIN.
• Court: Georgia Supreme Court

131 S.E. 70

161 Ga. 392

PERRY v. TUMLIN.

No. 4720.

Supreme Court of Georgia

December 17, 1925

Syllabus by the Court.

Where a certiorari is granted to review the proceedings of a municipal court in a case in which two or more of the judges each presided at different stages of the trial, and exceptions are taken as well to the judgment of the judge who ruled upon an issue antecedent to the final judgment as to the final judgment itself, both municipal judges should answer the certiorari. In such a case the answer of the judge who presided in the trial of the issue antecedent to that in which the final judgment was rendered is sufficient to verify or deny the allegations of the petition for certiorari upon that point, even though the municipal judge who presided at the time the final judgment was rendered may answer that for lack of knowledge he is unable to make answer as to the truth of the allegations of the certiorari upon the antecedent issue. In a municipal court composed of more than one judge but in which only one judge presided in the original trial of a case, the right to review by certiorari will not be denied by reason of the fact that the judge who rendered the final judgment in the cause may not be able to certify to an antecedent ruling of the court, rendered while another and different judge thereof was presiding.

It is not necessary to traverse an entry of service in which it appears that the defendant has been personally served, in order to file a plea to the jurisdiction of the court; nor is a plea to the jurisdiction of the court, which avers that the defendant is a nonresident of the county in which the suit is brought, defective, although there is no denial that the defendant was duly served as alleged in the entry of service made by the officer who executed the process. Service is one thing, and jurisdiction is another and entirely different thing, in the sense that service is essential even though jurisdiction be admitted.

In view of the ruling in the preceding headnote, a ruling to the effect that "a plea to the jurisdiction, on the ground that the defendant was not a resident of the county in which the suit was filed, cannot be maintained without a traverse of the entry of service, where it appears therefrom directly or by necessary implication that the suit was filed and served in the county of the defendant's residence," is not reconcilable with the holding of the Supreme Court in paragraph 3 of the syllabus in McKnight v. Wilson, 158 Ga. 173, 122 S.E. 702. The ruling quoted carries an implication that the officer serving the process may determine the residence of the defendant whom he serves, by a consideration of the allegations of the petition as to the defendant's residence.

Additional Syllabus by Editorial Staff.

Entry of service of sheriff or other serving officer acting under oath prima facie imports absolute verity, and cannot be questioned except on sworn denial of truth of statements contained in it.

Serving officer is not clothed with power to adjudge or determine residence of defendant whom he serves.

Certified questions from Court of Appeals.

Action between W. O. Perry and J. W. Tumlin. Judgment for the latter, and the former brought error to the Court of Appeals which certified questions to the Supreme Court. Questions answered.

Jas. A. Perry and F. A. Hooper & Son, all of Atlanta, for plaintiff in error.

Roger B. Jones, Troutman & Troutman, and Lindsey L. Moore, all of Atlanta, for defendant in error.

RUSSELL C.J.

1. In our opinion the first question must be answered in the affirmative. Abbreviating the inquiry, the question may be stated as one whether, on the review of a case in which two judges at different times and at different stages participate in the adjudication, must verification of the proceedings in the trial court be confined to the judge who presided at the rendition of the final judgment, or may not a different judge, who presided upon the investigation of some preliminary or interlocutory question, verify the history of that portion of the proceedings in the trial court in which the judge who finally presided did not participate, and with relation to which he was therefore not prepared to certify? In other words, we hold that the failure of the judge who rendered the final judgment to certify the allegations of a petition for certiorari with respect to antecedent rulings may be supplied by the verification of the judge who made the antecedent rulings in an answer filed by him, admitting that the allegations of the petition with respect thereto are true. In Marchman v. Todd, 15 Ga. 25, it was held that--

"Where a certiorari is granted, to review the proceedings of an inferior judicatory, all the magistrates who presided on the trial should answer the certiorari."

At first blush this ruling would seem to be but little in point on the question now before us, for the Marchman Case related to a certiorari from one of the inferior courts of this state, which, as is well known, consisted of five justices; and we might infer that an answer from all of the justices who presided at the trial was required for the purpose of informing the reviewing court that the judgment rendered was in fact a judgment of the majority of the court. However, the court did not place its ruling upon that ground. In the seventh division of the opinion, written by Judge Lumpkin, he said:

"In cases like this, all the magistrates who presided on the trial below should answer the certiorari. It is not a mere transcript of the record that is sent up; but, like a bill of exceptions in this court, the certiorari and return are intended to supply those facts which do not appear of record. Some of these might be remembered by some of the magistrates, which are not recollected by the rest."

So we see that the real ground upon which the decision embodied in the seventh headnote rests is the propriety or right of each magistrate to verify what he may remember better than some other member or members of the court. And upon the same principle, in the trial of a case at one stage, the judge who presided at that time not only would remember better than a judge who was not present, but he would be the only one of the two judges who could remember it at all, or who would know what transpired at that stage of the case. We think the point is controlled by the ruling of this court in Hall County v. Gilmer, 123 Ga. 173, 51 S.E. 307, in which the writer, then a judge of the superior court, presiding for Judge Kimsey in Hall superior court, certified exceptions pendente lite to a judgment overruling a demurrer to the petition, and at the termination of the case Judge Kimsey, having thereafter overruled exceptions of law to the report of an auditor, certified the main bill of exceptions, including the exceptions pendente lite previously certified in his absence, but which appeared from the record. This court approved the practice in that case, and held:

"Where exceptions pendente lite are filed to the overruling of a demurrer, and are duly certified by the judge whose ruling is complained of, and are

entered of record, no further certificate by the judge as to that ruling is required."

Likewise we say in this case that the answer of Judge Pettigrew of the municipal court having verified the allegations of the petition to the judgment upon the plea to the jurisdiction, no further verification as to that point was required. It is immaterial that Judge Ridley, who presided when the final judgment was rendered in this case, was unable to certify as to what occurred before Judge Pettigrew, because, under the ruling in the Hall County Case, supra, Judge Pettigrew, having verified what Judge Ridley could not, "no further certificate by the judge as to that ruling is required."

In Cutts v. Scandrett, 108 Ga. 620, 34 S.E. 186, Judge Felton of the Macon circuit, and Judge Butt of the Chattahoochee circuit, each presided at different stages of the trial. Judge Felton overruled a demurrer to a petition for an information in the nature of a quo warranto, and found adversely to the...