13 Ga. 217 | Ga. | 1853
By the Court.
delivering the opinion.
The record in this case is voluminous; still the facts necessary to the decision of the points made in the bill of exceptions are few.
Nathaniel H. Beall, as executor of Rebecca Bostwick deceased, caused Samuel R. Blake to be arrested on a ea. sa. purporting to have issued upon a judgment in Bibb Superior Court.
The defendant moved to vacate this judgment, upon the ground that it appeared from the record in the case, that no process had been attached to the declaration by the Clerk, and that there was no evidence thereon that the/writ had ever been served by the Sheriff, or that service had been acknowledged by the defendant.
It seems that while the Common Law action was pending, Blake, the defendant, filed a bill enjoining the proceeding • that a verdict and decree were rendered against him on the bill, and that afterwards, to wit, in July, 1850,.when Beall
“ It appearing to the Court that the original declaration in the case has been lost, and that the within is, in substance, a true copy, it is ordered^that the same be established in lieu of the original, and received and used as such, and that the cause do proceed,”
The copy thus established is contained in the transcript of the record sent up to this Comí. It contains neither process nor service.
Upon this copy a confession of judgment was entered by the Messrs. Hines, attorneys for Blake, for the plaintiff’s demand, together with cost of the suit.
At July Term, 1851, twelve months after the foregoing order was taken, and after judgment had been entered up against the defendant, another ex parte order was taken, which is in these words:
“It appearing to the Court, that in establishing a copy writ in the case of Nathaniel H. Beall, executor, &c. against Samuel R. Blake, it was omitted to enter a copy of the service by the Sheriff and also the process, it is now ordered that the Clerk of this Court do make said entries on said copy writ, nunc pro tunc.”
After hearing argument, the Circuit Judge decided that the judgment on which this ca. sa. issued was null and void, on the ground that it did not appear from the record or papers of file, that there ever was a process attached to the original declaration, or that the same had been waived by the defendant. Neither did it appear that process had yet been attached to the established copy, or waived, or that either the original or copy was ever served upon the defendant, or waived by him ; and that the several orders taken to perfect the pleadings and record in said cause do not purport to give, nor do they give authority to any one to attach process to the original declaration or to the copy established in lieu thereof.
To this judgment, as well as to the refusal of the Court to
The Act of 1799, after prescribing the manner in which process shall be sued out and returned, declares, that all process issued and returned in any other manner, shall be null and void. Prince, 420, 421. .
We do not question this position. It is sound law. 2 Cranch, 498. 7 Johns. Rep. 209. 3 Hen. & Munf. 309. But simple irregularities are not complained of in this case, but a defect, which vitiates the proceedings in toto. And the distinction in numerous cases by this and all other Courts is, that objections or applications to set aside proceedings for irregularities should be made the first Opportunity the party has to bring his complaint before the Court, and before the party committing the error has taken any further step in the cause. 2 Taunton, 243. Evans vs. Rogers, 1 Kelly, 463.
We are clear, therefore, that the defect in this case was not cure'd either by the admissions of the defendant in his bill in Chancery that suit was pending against him at Law, or the confession of counsel for him in said suit.
Judgment affirmed.