W. T. Rawleigh Co. v. Watts

• Decision Date: 27 January 1943
• Docket Number: 29843.
• Citation: 24 S.E.2d 213,68 Ga.App. 786
• Parties: W. T. RAWLEIGH CO. v. WATTS.
• Court: Georgia Court of Appeals

24 S.E.2d 213

68 Ga.App. 786

W. T. RAWLEIGH CO. v. WATTS.

No. 29843.

Court of Appeals of Georgia, Division No. 2.

January 27, 1943

Price Edwards and James R. Murphy, both of Buchanan, for plaintiff in error.

J B. Edwards, of Cedartown, D. B. Howe, of Buchanan, and Olin T. Flournoy, of Cedartown, for defendant in error.

zSUTTON Judge.

The petition in the present case, which was filed against two named defendants of Haralson County, Georgia, and against J S. Watts and two others of Polk County, Georgia, was based on an alleged account stated and set forth a cause of action. The petition prayed that process issue requiring the defendants to be and appear at the next term of the superior court of Haralson County, and that "second originals with process thereon directed to the sheriff of Polk County and his lawful deputies do issue and that the sheriff of Polk County serve a copy each upon defendants of Polk County and make entry of such service on said second original and return to this county." On July 25, 1939 thereafter original process was issued by the clerk of Haralson superior court bearing test in the name of the judge of that court, the situs being shown as "State of Georgia, Haralson County," the process being directed to the sheriff of said county, requiring, personally or by attorney, the named defendants of Haralson County and Polk County to be and appear at the next superior court to be held in and for said county on the 3rd Monday in January next, etc. Copies of the petition and process were duly served on the defendants residing in Haralson County and returns with entries made. The clerk also issued a second original, copies of the petition and of the process, all being regular except that instead of the words "Haralson County" appearing in the situs the words "Polk County" were shown, and J. S. Watts and the other two defendants residing in Polk County were each served with copy of process and copy of the petition, and returns with entries of service were made to Haralson superior court.

Upon the trial of the case judgment was rendered against all of the defendants except one other than Watts, and executions were thereafter issued against all defendants named in the judgment. To the levy of the execution upon certain property of Watts he filed an affidavit of illegality on the ground that he resided in Polk County at the time the suit was brought, and has since so resided, and that he was never served with valid process, had never acknowledged service of process or waived process, and had not appeared and plead in the said case; that the purported service was void for the reason that it required him to be and appear at the superior court of Polk County on the 3rd Monday in January, 1940, and the case was not pending in the superior court of that county, and he had not had his day in court. The court sustained the affidavit of illegality and dismissed the levy and set aside the judgment as to him, and the plaintiff excepted. The process here involved was issued from a court having jurisdiction of the subject matter of the suit and of the defendants who resided in Haralson County and had been properly served. Whether or not it acquired jurisdiction to render a valid judgment against Watts depends upon whether or not the process issued against him was void or merely defective and subject to amendment and cured by verdict.

A void process is no process at all and is not amendable. Code, § 81-1313; Lowrey v. Richmond & D. R. Co., 83 Ga. 504, 10 S.E. 123. Consequently, it is not cured by verdict. But process which is merely defective and not void is amendable and is cured by verdict. Betton v. Avery, 180 Ga. 110, 178 S.E. 297. "Formerly, under the Judiciary Act of 1799, process, if not sued and served in strict conformity to the requirements of the statute, was declared to be null and void. This was the strong language of the statute. But all this is changed; and relaxation, and not stringency, is the rule now. The Courts began to modify with the Act of 1853, and progressed with the broad allowance of amendments made by the Code, and the decisions and legislation which preceded it; so that now, if there be a legal cause of action set out in the declaration, and the defendant has had notice of the pendency of the suit, all other objections are to be disregarded, by so amending the proceedings as shall subserve the ends of justice." White v. Hart, 35 Ga. 269, 270. The original process in the present case was entirely regular. The copy process was regular in all respects except that it showed in the situs the words "Polk County" instead of "Haralson County." This did not, in our opinion, render it void but only defective. The Code, § 102-102 (6), provides: "A substantial compliance with any requirement of the Code, or laws amendatory thereof, especially on the part of public officers, shall be deemed and held sufficient, and no proceeding shall be declared void for want of such compliance, unless expressly so provided by the enactment." The Code, § 81-220, provides: "No technical or formal objections shall invalidate any process; but if the same shall substantially conform to the requisites of this Code, and the defendant has had notice of the pendency of the cause, all other objections shall be disregarded: Provided, a legal cause of action as required by this Code is set forth."

In cases wherein was raised the question whether or not the process was void because of various objections urged it has been ruled that a copy of the petition which was served on the complaining party may aid the process. See Williams...