Quitman Oil Co. v. Peacock
| Decision Date | 14 May 1914 |
| Docket Number | 5,526. |
| Citation | 81 S.E. 908,14 Ga.App. 550 |
| Parties | QUITMAN OIL CO. v. PEACOCK. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
Failure to make a person, who in the court below was a necessary party in the cause, a party to the bill of exceptions, and to serve him with it, will subject the writ of error to dismissal, if it is to his interest to sustain the judgment to which exception is taken.
(a) When a motion to dismiss a writ of error is made upon the ground that parties interested in sustaining the judgment complained of have been omitted, their interest or lack of interest may be determined by an inspection of the record.
(b) When it is admitted in a traverse of the sheriff's entry of service that the person referred to in the entry was in fact served with the process, and the denial goes no further than to assert that the person served was not duly authorized or empowered to accept service in the capacity or relation attributed to him in the entry of service, the sheriff has no interest in sustaining the judgment of the lower court, and for that reason is not such a necessary party defendant in the bill of exceptions as that the writ of error must be dismissed because the plaintiff in error omitted to make the sheriff a party, or serve him with the bill of exceptions.
Unless the charter of a corporation provides that an office shall become vacant at the expiration of the term of office for which the officer was elected or appointed, the general rule is to allow the officer to hold over until his successor is duly and legally elected and qualified. The failure of a corporation to elect officers does not terminate the terms of existing officers, or dissolve the corporation, and, since a relation, proved once to exist, is presumed to continue, one shown to have been duly elected such an officer of a corporation as to be authorized to accept service in its behalf, and shown to have discharged the duties of the office, will, in the absence of proof of affirmative action terminating his previous relation, be presumed to be a proper agent of the corporation upon whom service may be perfected.
The conclusion of a witness for the defendant that his connection with the defendant corporation had ceased prior to the date of the sheriff's entry of service was not supported by the facts and circumstances related by him, and consequently the witness' conclusion of law was without any probative value; and, as there was undisputed legal testimony sufficient to show that the witness' official connection with the defendant had not been terminated, it was not error for the court to direct a verdict finding against the traverse of the sheriff's entry of service.
Error from City Court of Quitman; W. H. Long, Judge.
Action by D. D. Peacock against the Quitman Oil Company. Judgment for plaintiff, and defendant brings error. Affirmed.
Bennet & Harrell, of Quitman, for plaintiff in error.
Branch & Snow, of Quitman, for defendant in error.
Peacock brought suit against the Quitman Oil Company, returnable to the November term of the city court of Quitman, and personal service of the petition and process was made upon O. K. Jelks as manager of the company. At the appearance term the defendant filed a traverse to the return of service made by the deputy sheriff. In the traverse it was alleged that O.
K Jelks was not manager of the Quitman Oil Company, and that he had no connection with that company, and had had no connection with it for 12 months prior to the date of the service, and that the company had not had a place of business in Quitman for more than 12 months. The deputy sheriff and the sheriff of the city court had not originally been made parties to the traverse, but upon the hearing these officers were made parties without objection, and the traverse was amended by being verified by O. K. Jelks. After hearing the evidence upon the traverse the court directed a verdict in favor of the plaintiff and against the traverse. Exception is taken to the judgment directing the verdict.
1. There was no formal motion to dismiss this writ of error, but counsel for the defendant in error, in their brief, insist that the bill of exceptions should be dismissed for want of proper parties; and, since the question is of a jurisdictional nature, we must decide it before we can properly consider the question raised by the bill of exceptions. If all parties whose interests may be affected by the judgment of the lower court are before us, the writ of error should not be dismissed, and, on the other hand, if the plaintiff in error has failed to serve with the bill of exceptions any person who was a necessary party in the court below, and whose interest in sustaining the judgment excepted to might be affected by a ruling upon our part, without his having an opportunity to be heard, the writ of error should be dismissed, even without a motion to that effect. It may be stated as a general rule that failure to make a person interested in sustaining a judgment excepted to, a party to the bill of exceptions, and to serve such person with a copy thereof, results in a dismissal of the writ of error ( United States Leather Co. v. First National Bank, 107 Ga. 263, 33 S.E. 31); or, as stated by this court in Swafford v. Shirley, 7 Ga.App. 347, 66 S.E. 1022 "all persons who are parties in the court below interested in sustaining the verdict, must be made parties in the writ of error brought to the Court of Appeals," and "where one who is an essential party to a bill of exceptions is not made a party thereto, and is not duly served, the writ of error will be dismissed." The decision in the present case is, to our mind, somewhat affected by the fact that, while the sheriff and the deputy sheriff were necessarily parties in the proceedings in the court below, it does not appear that they are essential parties here. The officer whose entry of service is traversed is a necessary party in the trial court, for several reasons: If the party filing the traverse asserts that he was never served at all by any one, under any circumstances, it is readily to be seen that the opposite party would have no means of disproving the traverse, except by the officer who made the entry. Furthermore, if it developes that the officer made a false or fraudulent entry of service, he should be before the court as a party, so that the court may be prepared to deal with this situation in the judgment. Whatever may be the reason for the law, it is not to be questioned that the sheriff is a necessary party to a traverse of his entry of service, which is prima facie true, and is conclusive unless traversed in due time. Lamb v. Dozier, 55 Ga. 677; Sindall v. Thacker, 56 Ga. 52; O'Bryan v. Calhoun, 68 Ga. 217. In Southern Railway Co. v. Cook, 106 Ga. 452, 453, 32 S.E. 585, it was held that failure to make the sheriff who made the entry of service a party to the traverse is sufficient reason for disallowing the traverse. This is necessarily true, since the sheriff's entry of service is conclusive until traversed and found to be untrue by a jury. Read Phosphate Co. v. Weichselbaum Co., 1 Ga.App. 420, 58 S.E. 122, citing Davant v. Carlton, 57 Ga. 491. But does it follow that, because the sheriff is a necessary party in the court which must primarily determine whether his...
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