Williams v. Batten, (No. 3564.)

Citation119 S.E. 709,156 Ga. 620
Decision Date12 October 1923
Docket Number(No. 3564.)
PartiesWILLIAMS et al. v. BATTEN.
CourtSupreme Court of Georgia

(Syllabus by the Court.)

Error from Superior Court, Fulton County; W. D. Ellis, Judge.

Suit by A. G. Batten against A. C. Williams and others. Decree for plaintiff on directed verdict, and defendants bring error. Affirmed.

A. G. Batten brought his petition against A. C. Williams, Arnold Broyles, clerk of the superior court of Fulton County, and T. C Miller, deputy clerk of said court, and set forth the following:

On December 22, 1919, A. C. Williams filed in the superior court of Fulton county his petition against A. G. Batten, alleging that said Williams had conveyed to Mrs. Eva Williams, then his wife, by warranty deed upon an expressed consideration of $1,875, certain described real estate in Fulton county; that the recital of consideration in the deed was false, the true consideration being a provision for alimony thereby made to the grantee; that afterwards the grantor and grantee resumed cohabitation, which avoided said deed; that subsequently to the cohabitation his said wife obtained a divorce and married Batten, who became her sole heir at law upon her death in 1919; and that Batten was a nonresident of the state of Georgia. Williams prayed that the said deed be canceled, that a writ of possession issue in his favor, and that service be had upon Batten by publication. On the day said petition was filed Williams obtained an order for service thereof by publication, and afterwards obtained a certificate of Miller, deputy clerk, that he (said deputy) had mailed a copy of the newspaper containing the published notice addressed to Batten, the defendant in that suit, at his last know address. Thereupon Williams obtained an order declaring service by publication perfected upon said Batten. Upon this suit Williams obtained a verdict and judgment canceling said deed, at the May term, 1920, of said court, and upon this obtained a writ of possession in his favor.

The last publication of said notice was less than 15 days before the March term, 1920, of said court, that term convening on March 1, 1920. In fact, neither the clerk nor the deputy clerk of said court mailed to Batten the copy of said newspaper addressed to him, but the same was delivered to the attorney for Williams, and the attorney mailed it. The publication containing the notice was never received by Batten, nor did he have either notice or knowledge of the filing of the petition or any of the proceedings in connection therewith until July 11, 1921, and he did not waive service nor appear in person or by attorney at any stage of the proceedings. The allegations of the petition of said Williams were false; the deed was not void, and there was no subsequent cohabitation between Williams and his wife; that petition was filed in Williams' personal capacity, whereas at the time of its filing and ever since he was the administrator of the estate of the grantee in the deed, who was his wife at the time of her death. The real estate was purchased with funds belonging to Eva Williams, but title thereto was wrongfully taken by A. C. Williams in his own name.

"Petitioner further shows that said certificate of said deputy clerk, and the order declar-ing service perfected, and the verdict and decree and writ of possession were and are void, for the following reasons, to wit: (a) Because the personal representative of the grantee in said deed was not made a party to said cause. (b) Because said notice was not mailed by the deputy clerk as required by law. (c) Because the attempted service by publication was not completed more than 15 days before the return term of the court. (d) Said verdict, decree, and writ of possession were and are void, for the further reason that the said A. G. Williams practiced a fraud upon your petitioner and upon this honorable court by false allegations in the respects aforesaid."

Petitioner prays that said certificate of mailing and order declaring service perfected be vacated, and that said verdict, decree, and writ of possession be set aside and annulled, for process, for service by publication upon the defendant A. C. Williams, and for other and further relief, etc.

In his answer A. C. Williams denied that the date of the last publication of the notice was less than 15 days before the March term of the court, that his attorney mailed the copy of the newspaper containing the notice to Batten, that the allegations of Williams' petition in the former suit were false, and that the real estate was bought with the funds of Mrs. Eva Williams. For want of information he was unable to admit or deny that Batten never received notice of the pending suit against him, and whether Batten is the administrator of his wife. By amendment the defendant set up that, on the date when the certificate that a copy of the publication containing the notice to appear had been mailed was signed by the deputy clerk, R. R. Jackson, who was one of counsel of record for A. C. Williams, presented to said deputy clerk a copy of the paper in which the citation for service by publication was run; that the deputy clerk made a pencil mark around the printed citation in said paper, and, after marking the same, put it in an envelope furnished by Jackson, which was stamped and addressed to Batten at his last known address in Texas, handed the envelope so addressed and stamped to Jackson, and requested Jackson to place the same in the United States post office mail box just outside of the clerk's office; and that Jackson then and there left the desk of the deputy clerk, walked through the entrance to said United States mail box, and deposited said envelope and contents in said mail box. The defendant admitted that the last publication of said notice was less than 15 days before the March term, 1920, of the court.

The defendant also interposed an oral demurrer on the grounds that the allegations of the petition showed no case against the defendant, and no right in the plaintiff to the relief sought, and that the allegations of the petition showed that the service complained of had been perfected according to law. This demurrer was overruled, and the defendant excepted pendente lite. The court directed a verdict for the plaintiff upon an agreed statement of facts as follows:

"We agree that the court directed a verdict for plaintiff on the pleadings in said cause, and upon statements of counsel for both parties that such pleadings contained truthful averments as to facts of alleged service of the bill in the ease of Williams against Batten, the verdict and decree wherein were sought to be set aside by these proceedings."

By this verdict the jury found in favor of the plaintiff, that the service in the suit of A. C. Williams v. A. G. Batten was void, and that the verdict and decree therein be set aside. Decree was entered accordingly. The defendant moved for a new trial...

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