Ballard v. Bancroft—Ballard, 31 Ga. 503

Ballard v. Bancroft—Ballard

31 Ga. 503 | Ga. | 1860

By the Court. —

Jenkins, J.,

delivering the opinion.

1. The first exception taken to the rulings of the Court below, is to that overruling the defendant’s objection to the competency of one Campbell, who was the clerk of the Court when the declarations in these cases were filed; the object being to show that processes had been annexed to' the declarations when filed. Was Campbell a competent witness? Had the plaintiff’s action failed, by reason of his neglect to annex processes to the declarations, he would have been liable to the plaintiff for damages. Again, the law allows the clerk of the Superior Court a certain fixed compensation for annexing process, and for copy process. The law furthermore expressly prohibits the Clerk from charging parties litigant for any service not actually rendered. If these processes had been annexed to the declarations, Campbell would, at the end of the suit, be entitled to a fee for that service; otherwise, he would not. He had, then, clearly an interest to the extent of his fees for processes, in establishing the fact, that they had been annexed, and however small the interest may be, if certain and fixed, it renders the party interested incompetent as a witness. There was, therefore, error in this ruling.

2. It is assigned as error, that supposing the witness, Campbell, competent, the Court, without sufficient evidence that processes had been attached to the original declarations, ordered processes to be issued instanter, and to be attached to the declarations.

In this order, it is assumed that processes had been attached, and if so, that fact must have appeared from Campbell’s evidence — there being no other to the point. Campbell swears positively to nothing. He gives his “recollec*506tion” as to what he did. And what was that recollection? That he made out and signed processes for these cases, on separate papers, and laid them loosely in the folds of the declarations. This is not “annexing” process. The law expressly requires that process shall be “annexed” to the declaration. And further, that any “process issued and returned in any other way, shall be null and void.” It is the process that brings the party into Court; hence the particularity of the law. We hold that process must be either written, or printed and written, on the same pstper with the declaration, or, if written on different paper, that must be securely attached by wax, or by tape, or some other safe ligature, to the declaration. ’ Nothing short of this, is a compliance with the law. Campbell’s testimony negatives such attachment, and there was, therefore, error in the passage of the order.

Essential to give jurisdiction. “In Ballard v. Bancroft, 31 Georgia, 503, it is said, ‘the delivery of a copy of the process, with a copy of the petition to the defendant, is essential to perfect service, and to give the Court jurisdiction of the case,’ and this was made one of the headnotes in that case. It is true, the motion was to dismiss the case, because the defendant had not been served with a copy of the process; and the dismissal was ordered by this Court. The decision is referred to, for the purpose of showing how far Courts have gone in holding that service is one of the essentials to give jurisdiction.” Branch v. The Mechanics’ Bank, 50 Ga. 417. “Without service on the defendant, or its equivalent, the court, though the subject-matter of the petition may be within its jurisdiction, has no jurisdiction of the person sought to be sued; and, as said by the court, in Gray v. Hodge, 50 Ga. 263, ‘A suit in a court having no jurisdiction is no suit at all; it is simply a nullity.’ ” McLendon v. Hernando Co., 100 Ga. 222-3.

3. The law is equally imperative that a copy of the process shall be delivered to the defendant, and one ground of the motion to dismiss these actions, was, that no copies of the processes had been delivered to the defendant. There was not only no proof that this had been done, but there was proof adduced by the plaintiff, himself, that it had not been done. There was, therefore, error in overruling the motion to dismiss on this ground.

JUDGMENT.

Whereupon, It is considered and adjudged, that the judgment of the Court below be reversed, on the ground that the Court erred in overruling the motion to dismiss said actions — this Court holding, first, That the clerk in office at the time said declarations were filed, was an incompetent witness to prove that he had annexed process to the declarations; secondly, That his testimony did not show that any process had been “annexed” to the original declarations; thirdly, That the evidence offered by plaintiff, showed that no copy process had been attached to the copy declaration.