Reynolds v. Lyon

• Decision Date: 30 June 1856
• Docket Number: No.40.,40.
• Citation: 20 Ga. 225
• Parties: William Reynolds, plaintiff in error.。 vs. Thomas Lyon, defendant.
• Court: Georgia Supreme Court

20 Ga. 225

William Reynolds, plaintiff in error.。 vs. Thomas Lyon, defendant.

No.40.

Supreme Court of the State of Georgia

JUNE TERM, 1856.

Attachment, &c, in Baker. Tried before Judge Allen, May Term, 1856.

Thomas Lyon sued out an attachment against William Reynolds, founded upon which a declaration was filed declaring upon two judgments alleged to have been obtained by the plaintiff against the defendant, one for $79 principal debt, $85 70 interest and costs of suit, and the other for $59 50 principal, $9 24 interest and costs. Both judgments obtained at the October Term, 1840, of Lincoln Superior Court.

Upon the trial the plaintiff offered in evidence exemplifications of the said two judgments. To which defendant objected, on two grounds—

1st. "Because defendant had never waived process, that process had never been attached, and that said judgments were therefore void."

2d. "Because the exemplifications showed that fi. fas. had been issued on each judgment; and that though they were apparently dormant, could not be offered in evidence until said fi. fas. were produced or were shown to be dormant; also, for the want of proper entries."

The exemplification offered in evidence showed, in the suit which resulted in the first named judgment, this acknowledgment of service:

"I acknowledge service on the within writ.

WM. REYNOLDS."

And in the second, this:

"I acknowledge due and legal service of the within writ, and waive copy and process. WM. REYNOLDS."

No original process in either case.

In the first case, a fi. fa. is shown to have issued on the 14th Nov., 1840.

In the second, on the 10 th Nov., 1840; and nothing further appears in either case, with reference to these ft. fas.

The Court below over-ruled both objections, holding— 1st. That there was a sufficient waiver of process in both cases.

2d. That said exemplifications were sufficient to authorize plaintiff to recover without producing the ft. fas. To which defendant excepted.

Plaintiff then read these exemplifications in evidence and closed. The defendant offered no testimony. Verdict for plaintiff. Defendant assigns error upon the two points decided.

W. E. Smith, for plaintiff in error.

Strozier & Slaughter, contra.

By the Court.— McDonald, J., delivering the opinion.

There was no process to the declaration in the original case in Lincoln County, in which a judgment was rendered for seventy-nine dollars. There was no waiver of process by the defendant. The whole proceedings, in this case, are void for the want of process under the Judiciary Act of 1799, and it is not aided by the Act of 1840. Little vs. Ingram et al. (16 Ga. R. 194.) The Court, therefore, erred in admitting in evidence the exemplification of that judgment.

There was a waiver of copy and process in the other case, and the exemplification of that judgment was properly admitted. (Ibid.)

The objection to the exemplifications, on the ground that they showed the issuance of executions on the judgments, and did not show that the executions were dormant, was rightfully over-ruled by the Court.

Writs of ft. fa. were issued in November, 1840. It was no objection to the admissibility in evidence of the record of thejudgments, that it did not show that the executions were dormant. It did not show that they had been returned. If the judgments had been satisfied, or were still vital and effective, it was a matter of defence.

The judgment of the Court below must be reversed, and a new trial is ordered, unless the plaintiff shall remit the amount of the judgment, principal, interest and costs, the exemplification of which was improperly admitted in evidence; and it is adjudged that the defendant in error pay the costs of prosecuting the case in this Court.

AMENDMENT OF PROCESS EXTENDING TIME.OF SERVICE.

"Where there was an original process attached to the declaration which was not copied and served on the defendant, the declaration alone being served, it was competent for the court, on motion of the plaintiff's counsel, to order the original process to be made returnable to the next term of the court, and that a copy be served on the defendant, notwithstanding the defendant had made a motion to dismiss the action." Lassiter v. Carroll, 87 Ga. 731: * * * * "It is clear that the entire absence of process can not be supplied by amendment; but where there is original process, as in the present instance, it is in the power of the court to retain the case, allowing such amendment and granting such further time for service as may he required to give due notice to the defendant. It has been held that "the decisions made by this court as to the want of original process do not in strictness apply to a defect in the copy. Cochran v. Davis, 20 Ga. 581. In that case the copy was practically as in effectual as in the present case, being without the signature or the clerk, but the court directed that the omission be supplied. This court has repeatedly recognized the right of the court below, to pass an order amending the process, and extending the time for service. See Baker v. Thompson. 75 Ga. 166; Allen v. Mutual Loan & Banking Company, 86 Ga. 74." Id. 733.

FI. FA. NOT NECESSARY TO COMPLETENESS OF RECORD. "In the case of Dobbs et al. v. The Justices, etc., 17 Ga. 625, it was held that "Original papers, if to be procured, are always better evidence than copies; and the latter are allowed only from necessity or convenience." ...