123 Ga. 734 | Ga. | 1905
Hirsch Brothers sued out a scire facias to revive a dormant judgment. It was served upon the defendant by “ leaving a copy at his most notorious place of abode.” After return of service had been made, and at the first term of the court, the defendant appeared and moved the court to dismiss the scire facias, upon the ground that it had not been sérved upon him personally. The judge overruled the motion, and the defendant excepted.
The Civil Code, §5381, provides that a scire facias to revive a dormant judgment “shall be served by the sheriff of the county in which the party to be notified may reside, twenty days before the sitting of the court,” etc. No particular method of service is prescribed. “ The general rule in regard to service of process or legal notice is that it must be served personally on the party or the individual in question, unless some other mode is especially provided for that purpose by statute or has been otherwise established by long and recognized practice to the contrary.” 19 Enc. Pl. & Pr. 614, 620. This rule was cited approvingly in Baldwin v. Baldwin, 116 Ga. 472, where Chief Justice Simmons, said: “ The code provides for notice to the defendant [in a proceeding for alimony], and the defendant himself must be served personally with notice before the court can acquire jurisdiction to proceed
Section 5382 of the Civil Code, which provides the method of ■ service by publication upon non-residents against whom dormant judgments are sought to be revived, concludes with this language: “ which service shall be as effectual in all cases as if the defendant or person to be notified had been personally served.” This would seem to indicate that the legislative interpretation of the act providing for service within the State was that such service ■should be personal. But it is contended by the defendant in error that a writ of scire facias is in the nature of an action at law, that it “assumes all the forms and attributes” of such, and there-fore comes under the provisions of the Civil Code, §4985, which prescribes the mode of service in this State in actions commenced
Judgment reversed.