33 Ga. App. 539 | Ga. Ct. App. | 1925
At the first term of court after this suit was filed the defendant, under the provisions of § 5560 of the Civil Code of 1910, traversed the return of service. The deputy sheriff who made the entry of service and the sheriff were made parties to the traverse and acknowledged service. Until legal service on the defendant, the court had no jurisdiction to pass any order in the case, unless it was an order to dismiss the case for lack of service. The issue qf fact raised by the traverse should have been disposed of by a trial. Dozier v. Lamb, 59 Ga. 461 (1), 462 (1); Parker v. Rosenheim, 97 Ga. 770 (2) (25 S. E. 763). The court erred in striking the traverse, and the further proceedings were nugatory.
However, it is conceded by both parties that the copy of the declaration which was served upon the defendant did not have attached to it a copy of the insurance policy sued on; and as it appears that the petition, without such copy attached, would be subject to the special demurrer filed upon this ground, the only legal result that would follow a trial of the traverse would be to find that the defendant had not properly been served. Therefore, in the interest of time and expense, and under the broad powers given this court, it is ordered that at the first term after the remittitur is filed in the lower court, that court enter an order declaring that no proper service has been perfected on the defendant, and directing the clerk of the city court of Richmond county to make a copy of the original petition, including a copy of the policy of insurance attached thereto, and that the sheriff serve the defendant with said copy, and that the next term of said court after said service stand as the trial term of the case.
Judgment reversed, with direction.