52 Ga. App. 813 | Ga. Ct. App. | 1936
L. O. Benton, the transferee of an execution in favor of T. R. Bennett, superintendent, etc., for the use of the Bank of Eatonton against John D. Maddox in the principal sum of $683.37, caused the execution to be levied on certain property as the property of the defendant in execution. The defendant, in an affidavit of illegality, attacked the validity of the judgment on which the execution issued on the ground that the defendant had never been served with the petition and process, had never waived service, had never appeared and pleaded, and had never authorized any one to do any of these things for him. The defendant alleged that the sheriff had made a return of service on the petition to the effect that the defendant had been duly served with the petition and process. The defendant traversed this return of the sheriff, and prayed that the sheriff be made a party. Later, by amendment to the affidavit of illegality, the defendant struck the allegation that the sheriff had made a return of service and dismissed the sheriff as a party to the case.
On the trial it appeared that the original papers were lost. The plaintiff in fi. fa. offered the testimony of the sheriff to the effect that he had served a copy of the petition and process on the defendant and had made a due and legal return of service on the original petition and process at the proper time, and had returned the petition and process with his return of service thereon to the clerk, that he had made a written memorandum of these facts at
The plaintiff made a motion for new trial on the general grounds, and on the ground that the court erred in excluding the proffered testimony which was excluded. The plaintiff also excepted to the failure of the court to charge written requests timely made by the plaintiff, that it is presumed that a court in rendering judgment had before it sufficient evidence of service to authorize the rendition of the judgment, that if the record is silent as to service the presumption in favor of the judgment would give aid to the party obtaining the judgment and the burden would be on any one attacking the judgment to show that service had not been perfected, that the record is silent in this case on the question of service and it is therefore presumed that the defendant Maddox was served and the burden is on him to show that he was not served, that unless
The original papers in a case on file in the clerk’s office of the court are matters of record. When it is shown that they are lost or destroyed their contents may be proved by parol. Gray v. McNeal, 12 Ga. 424 (7); Bridges v. Thomas, 50 Ga. 378; Battle v. Braswell, 107 Ga. 128 (32 S. E. 838). Upon proof that the original papers were lost it was competent to show their contents by parol, and in so doing, to show that the papers contained a return of servviee made by the sheriff. It was competent to show this by the testimony of the sheriff himself. While the copy of lost papers which are matters of record may be proved by copies of same as they appear of record in the writ book required to be kept by the clerk of the court, the mere failure of the record, as appears from the writ book, to show the existence of a portion of the record or lost paper, the contents of which are established otherwise by parol, is not conclusive of the nonexistence of the paper. It may be a circumstance tending to contradict the parol testimony. The portion of the writ book which contained records of cases in the office of the clerk of the superior court decided at the same term at which the present case was decided and recorded in the writ book immediately before and immediately after the record of proceedings in this case, and which records contained no copies of entries.of service made in such cases, and also evidence consisting of the original papers in these cases on file in the clerk’s office in which it appeared that entries of service in such eases had been made although the record of such was omitted from the record of these eases in the writ book, was improperly excluded. Such evidence was relevant and material as a circumstance tending to discount the probative value of the record in the writ book of the original papers in the present case wherein the record was silent as to any return of service by the sheriff. The court erred in excluding this evidence, and also erred in excluding the parol evidence of the sheriff tending to establish a return of service, and erred in failing to charge as requested and also erred in the charge as excepted to. The court erred in overruling the plaintiff’s motion for new trial.
Judgment reversed.