Swafford v. Shirley

• Decision Date: 10 February 1910
• Docket Number: (No. 1,762.)
• Citation: 66 S.E. 1022,7 Ga.App. 347
• Parties: SWAFFORD. v. SHIRLEY et al.
• Court: Georgia Court of Appeals

7 Ga.App. 347

66 S.E. 1022

SWAFFORD.

v.SHIRLEY et al.

(No. 1, 762.)

Court of Appeals of Georgia.

Feb. 10, 1910.

(Syllabus by the Court.)

1. Appeal and Error (§ 327^*)—Necessary Parties — Parties Below Interested in Sustaining Verdict.

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.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 1814-1820, 1822-1835; Dec. Dig. § 327.*]

2. Appeal and Error (§ 330*)—Dismissal-Absence of Necessary Parties.

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.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 1870; Dec. Dig. § 336.*]

3. Exceptions, Bill of (§ 58*)—Certiorari (§ 46*)—Service of—Sufficiency.

Unlike service of the notice of the sanction of the certiorari (for the service of which upon nonresidents the law has not provided), the service of the bill of exceptions upon a nonresident party thereto may be effected by mail. Civ. Code 1895, § 5548. If the post office address of the nonresident defendant in error is unknown, service of the bill of exceptions may be perfected by publication. McCowan v. Brooks, 113 Ga. 391. 39 S. E. 112.

[Ed. Note.—For other cases, see Exceptions, Bill of, Dec. Dig. § 58;* Certiorari, Dec. Dig. § 46.*]

Error from Superior Court, Rabun County; J. J. Kimsey, Judge.

Action by J. M. Swafford against M. L. Shirley and others. From a judgment dismissing certiorari by plaintiff from a justice's judgment, he brings error. Dismissed.

W. S. Paris, for plaintiff in error.

McMillan & Erwin and H. H. Dean, for defendants in error.

RUSSELL, J. At the November term, 1901, the plaintiff in error brought suit upon a promissory note in a justice's court of Rabun county against W. P. Rembert and the present defendants in error. Rembert did not appear then or file any defense, and has never attempted to do so since. The justice rendered judgment in favor of the plaintiff against all of the defendants, and Shirley appealed to a jury, which carried the case with all the parties to a jury for de novo investigation. The jury found for the plaintiff the full amount sued for as against Rembert as principal, and found Shirley and Dickson to be securities only, and to be discharged from liability. The case was then carried by certiorari to the superior court, and thence by a writ of error to the Supreme Court. Shirley v. Swafford, 119 Ga. 43, 45 S. E. 722. The Supreme Court having affirmed the judgment of the superior court, sustaining the certiorari, the case was again tried before a jury in the justice court, where a verdict was returned, again releasing as sureties Shirley and Bleckley as administrator of Dickson. The plaintiff in error again carried the case by certiorari to the superior court, where the certiorari was dismissed upon the ground that the defendant Rembert had not been served with a notice of the sanction of the writ of certiorari as provided by law, and the present writ of error, which excepts to the judgment dismissing the certiorari, is now itself sought to be dismissed, upon the ground that Rembert has never been served with a copy of the bill of exceptions, or acknowledged or waived service.

It is clear that the writ of error must be dismissed upon the ground that Rembert has not been served, although it is not certain that the certiorari was properly dismissed upon the same ground. It is to be borne in mind that the provisions with reference to the service of the notice of sanction of a certiorari are not as ample as those with reference to the service of bills of exceptions upon nonresidents. The law does not provide any designated means by which service of the notice of the sanction of the certiorari may be effected upon a nonresident. It is possible, however, that a nonresident defendant in certiorari might be notified of the sanction of the certiorari and of the time and place of hearing by telegram, as pointed out by Chief Justice Simmons in Western Union Telegraph Company v. Bailey, 115 Ga. 727, 42 S. E. 89, 61 L. R A. 933. In the same case it is held that if the written notice was sent by another it would be sufficient If it was shown that the writing was actually received by the defendant in certiorari. Whether service by mail is sufficient is doubtful, inasmuch as it has been held that the unsworn certificate that a notice had been served is insufficient to show service, and, of course, the most that could be shown by mail (so far as proving that the addressee of the letter containing the notice received it) would be to produce the receipt which would be returned, showingthat the registered letter containing the notice had been received by the addressee.

The provision in regard to the service of the 10 days' notice to the adverse party, embodied in section 4644 of the Civil Code of 1895, is as follows: "The plaintiff in certiorari shall cause written notice to be given to the opposite party in interest, his agent or attorney, of the sanction of the writ of certiorari, and also the time and place of...