Regenstein v. Tyler

• Decision Date: 17 January 1890
• Citation: 10 S.E. 719,84 Ga. 277
• Parties: REGENSTEIN et al. v. TYLER et al.
• Court: Georgia Supreme Court

10 S.E. 719

84 Ga. 277

REGENSTEIN et al. v. TYLER et al.

Supreme Court of Georgia

January 17, 1890

Error from superior court, Pike county; BOYNTON, Judge.

Bill by Regenstein & Co. against Tyler & Co. and others, for injunction and receiver. Complainants bring error to a judgment of dismissal. Code Ga. § 3335, provides that "appearance and pleading shall be a waiver of all irregularities of the process, or of the absence of process and the service thereof."

R. T Dorsey, and S. N. Woodward, for plaintiffs in error.

J. F Redding, for defendants in error.

BLANDFORD J.

The plaintiffs in error presented their bill addressed to the judge of the superior courts of the Flint circuit, as exercising chancery jurisdiction therein, against the defendants in error, in which bill they prayed for an injunction against the defendants in error, and for the appointment of a receiver, and also prayed for subp na. Service was acknowledged by the defendants' attorney in these words: "Due and legal service acknowledged; copy and copy process under, and all further service and notice waived." The defendants answered this bill, and an injunction was granted, and a receiver appointed as prayed for therein. At the term of the court after the first trial term, defendants moved to dismiss the bill, and it was dismissed by the superior court, "for the reason that defendant is warned to appear by subp na, and not by process; that the same is a proceeding in equity, and not in law." This decision of the court dismissing the bill is excepted to, and the same is assigned as error.

We think the court committed error in dismissing the case. Process was waived by the defendants' attorney. Defendants appeared and pleaded to the same, and, while it was technically a proceeding in equity, we think that under the act of 1887, p. 64, entitled "An act to provide a uniform mode of procedure in civil cases," approved October 24, 1887,...