Phillips v. Wait

• Decision Date: 04 March 1899
• Parties: PHILLIPS. v. WAIT.
• Court: Georgia Supreme Court

32 S.E. 842

(106 Ga. 589)

PHILLIPS.

v.WAIT.

Supreme Court of Georgia.

March 4, 1899.

Judgment — Revival — Return op Service — Directing Verdict.

1. Where a copy of a petition to revive a dormant judgment, but no copy of the entire scire facias issued thereon, is served upon the defendant, and he subsequently ascertains that an order has been passed by the court reviving the judgment, his knowledge of the existence of the order of revival is not inconsistent with ignorance on his part of an entry by the proper officer of service of the scire facias.

2. The evidence introduced by the movant being sufficient to have sustained a verdict in favor of the traverse, the court erred in directing the jury to find against it, and in favor of the officer's return of service.

(Syllabus by the Court.)

Error from city court of Atlanta; H. M. Reid, Judge.

Action by W. F. Wait against W. R. Phillips, Jr. Judgment for plaintiff. From anorder overruling a motion to set aside a revivor of the judgment, defendant brings error. Reversed.

Simmons & Corrigan, for plaintiff in error.

Shepard Bryan, for defendant in error.

FISH, J. This was a motion, in the city court of Atlanta, to set aside an order reviving a judgment rendered in that court, which had become dormant. One ground of the motion was the want of service of scire facias. The sheriff's entry of service was traversed, and he was made a party to the proceeding. It appeared from the evidence introduced by the movant, who was the defendant in the judgment, that he had been served with a copy of a petition to revive the judgment, but had not been served with a copy of the scire facias. The only evidence to the contrary was the entry of service by the officer. The movant testified that he did not know of the entry of service made by the sheriff upon the petition to revive the judgment until during the November term, 1897, of the city court of Atlanta, and that he, at the next term of that court thereafter, entered a traverse of the sheriff's return, and moved to have the order reviving the judgment set aside. This evidence was uncontradicted. It appeared that, after the order reviving the judgment was granted, the movant appeared in a justice's court, and moved to have a bond strengthened which had been given by the plaintiff in a garnishment proceeding based upon the judgment. It is contended by counsel for the defendant in error that the movant also filed a bond to dissolve the garnishment, but this does not appear from the record in the case. There was nothing upon the face of either the garnishment affidavit or the original garnishment bond to show that the judgment had been revived; the judgment mentioned in each being simply designated as "a judgment obtained at the September term, 1S87, of the city court of Atlanta." The additional bond given to strengthen the original garnishment bond states that the process of garnishment was sued out "upon judgment obtained at the Sept term, 1887, and revived at Jan'y term, 1897."...