Swift v. Dyke

• Decision Date: 03 August 1896
• Citation: 98 Ga. 725,26 S.E. 59
• Parties: SWIFT. v. VAN DYKE.
• Court: Georgia Supreme Court

26 S.E. 59

98 Ga. 725

SWIFT.

v.VAN DYKE.

Supreme Court of Georgia.

Aug. 3, 1896.

Service by Publication—Nonresident—Review on Appeal.

1. The act of October 29, 1889 (Acts 1889, p. 111), "to provide for the time and mode of perfecting service by publication, " as amended by the act of October 14, 1891 (Acts 1890-91, vol 1, p. 110), is applicable to a proceeding for the foreclosure of a mortgage upon realty; and consequently, where the mortgagor is a nonresident of this state, service may be perfected by publication twice a month for two months, in compliance with the terms of these acts.

2. To the extent above indicated, these acts modified section 3962 of the Code, though it is neither referred to nor described in either of them.

3. The above notes cover all the questions made in the case which can be considered without reference to the evidence; and, as the same was not briefed nor brought to this court in the manner prescribed by law, this court will not examine it for the purpose of ascertaining whether or not errors were committed.

(Syllabus by the Court.)

Error from superior court, Fulton county; J. H. Lumpkin, Judge.

Action by E. A. Van Dyke against Sylvia Swift. Judgment for plaintiff. Defendant brings error. Affirmed.

Robert L. Rodgers, for plaintiff in error.

King & Anderson, for defendant in error.

LUMPKIN, J. Whenever the general assembly expressly undertakes to amend or repeal an existing statute or section of the Code, it must comply with the provisions of paragraph 17, § 7, art. 3, of the constitution, which declares that "no law, or section of the Code, shall be amended or repealed by mere reference to its title, or to the number of the section of the Code, but the amending or repealing act shall distinctly describe the law to be amended or repealed, as well as the alteration to be made." Code, § 5076. It by no means follows, however, that it is not within the constitutional power of the general assembly to pass a general law which may incidentally affect or modify an existing law, although it is neither referred to nor described in the new act. Indeed, it would be difficult, if not impossible, to pass any general law of a wide or comprehensive scope without in some way affecting some law or laws already in existence. What is known as the pleading act of 1893 is an instance in point. This act absolutely did away with many sections of the Code, though it mentions none by number. Another illustration is to be found in the act of 1895, prescribing penalties for all felonies under the laws of this state (except those specially designated in the act), and further providing that all misdemeanors shall be punished as prescribed in section 4310 of the Code. This law makes the most sweeping changes in our punitive system, and yet it does not even remotely refer to a single statute or section of the Code, save only the one just mentioned, and does not undertake to describe it except by number. These illustrations might be multiplied, but the two given suffice for the present purpose.

If the above-quoted paragraph of our constitution is to be construed as absolutely forbidding all...