Williams v. Brother

• Decision Date: 31 October 1885
• Citation: Williams v. Brother, 75 Ga. 789 (Ga. 1885)
• Court: Georgia Supreme Court
• Parties: Williams. vs. Buchanan & Brother.

75 Ga. 789

Williams. vs. Buchanan & Brother.

Supreme Court of the State of Georgia

OCTOBER TERM, 1885.

Practice in Superior Court.Process.Service.Judgments.Before Judge Fort.Sumter Superior Court, April Adjourned Term, 1885.

Reported in the decision.

j. L. Albritton. for plaintiff in error.

Jambs Dodson & Son, for defendants.

Jackson, Chief Justice.

This is a motion to set aside a judgment and an affidavit of illegality to the execution issued thereon, both tried together on law and facts by his honor, Judge Fort, parties assenting.The motion was denied and the illegality dismissed, and error is assigned here on both judgments.Both questions turn on the same point.

By the original declaration, the defendant, the plaintiff in error here, is required by the prayer for process to appear " at the next superior court of said county, " and by the original process attached to this declaration he is " hereby required personally or by attorney to be and appear at the superior court to be holden in and for the county of Sumter on the second Monday in April next, " etc., and is dated the 28th of December, 1883.

In the copy served on the defendant, the declaration is an exact copy of the original, but the copy-process attached to it requires the appearance of the defendant on the second Monday in December next and is dated 28th of December, 1883, and in other respects is exactly like the original process.

The point is, that the defendant was not notified to be at court on the second Monday in April, the day fixed by law for the spring term, but on the second Monday in December, which is the beginning of no term known to the law in the county of Sumter, for the meeting of the superior court thereof.

It is to be remarked, first, that the defendant is notified by the prayer for process in the copy-declaration served upon him " to be and appear at the next superior court of said county, " and the law notified him that the next superior court would be held on the second Monday in April; and therefore when he looked at the copy-process, which the clerk annexed to the copy-declaration, he must have known that it was a clerical mistake of the clerk to require him to be and appear on the second Monday in December next.Secondly, he should have known of this mistake, because the superior court never convened on that day.No term of that court ever began on that day.Thirdly, he should have known of the mistake in the copy process, because it was dated on the 28th of ...