56 Ga. App. 132 | Ga. Ct. App. | 1937
Lead Opinion
The facts of this ease are set out in 52 Ga. App. 813, 817 (184 S. E. 788). . On the last trial the defendant in ñ. fa. assumed the burden of proof, and testified that he had never been served with any such suit as that on which the judgment was predicated. The same facts as set forth in the former opinion of this court were shown. The testimony of Maddox, the defendant in fi. fa., was objected to on the ground that he was incompetent as a witness to testify that he had not been served and that the sheriff did not in fact serve the papers, when the sheriff himself was not a party to the case, and there was no traverse of the return. The sheriff testified that he did make service of the petition, though it does not appear from his testimony in the record whether the service was or was not personal service. As rvas said in the former opinion in this case, “there is a presumption from the rendition of the judgment that service had been perfected; and where the record is silent as respects the perfection of service, the burden is on the one attacking the judgment to show that service had not been perfected.” It was said in Schulze v. Schulze, 149 Ga. 532 (101 S. E. 183): “The superior court is a court of general jurisdiction; and having exorcised jurisdiction and rendered judgment, we must presume that all necessary jurisdictional facts appeared. . . The judgment of the court imports verity.” It is the duty of the sheriff to deliver a .copy of the petition and process to the defendant either personally or by leaving same at the defendant’s residence, and to make an entry of such service upon the original petition and return the same to the clerk of the court. Code, § 81-202. A judgment having been rendered, there is a presumption that such entry of service was made upon the original petition. If there was such a return of service, in the absence of a legal traverse, to which the sheriff is a party, it is conclusive. An affidavit of illegality will not take the place of a traverse of the officer’s return. “An affidavit of illegality, denying service, is of itself sufficient to raise that issue only when no return of service exists; since a return of service is conclusive rrpon that question, in the absence of a timely traverse.” Webb v. Armour Fertilizer Works, 21 Ga. App. 409 (94 S. E. 610). The officer making the return is a necessary
The judgment imports a valid return of service. If there was a valid return of service in this case, the defendant is concluded thereby, without a traverse of such return. The officer making the return must be a party thereto. The judgment imports its verity. The writ record, although presumably correct, and possibly conclusive as against parol testimony as to what it does contain, is not conclusive as to what it does not contain. The original petition in this case being lost, the fact that other petitions were recorded at the same time, and, although the originals showed entries of service, the writ record showed no recordation of such entries, and the issuance of the judgment in the matter, was sufficient evidence to show an entry of service. Such being shown, the defendant in fi. fa. may not, without traverse of such entry, actual or implied, dispute the fact of service if he had notice of
The admission in the pleadings of the defendant, introduced in evidence, was that the sheriff had made a return of service, and that before the term at which the illegality issue was tried he
Judgment reversed.
Concurrence Opinion
concurring specially. This case is an affidavit of illegality filed by J. D. Maddox to the levy of an execution by T. 0. Benton as transferee. In the original affidavit the defendant alleged "that since the last term of said court it has come to his notice that in said case that A. J. Walton, the sheriff of said county, made return of service on the petition in said case that he served this affiant with a copy of said petition and process on the -day of — .-, 1923; and affiant says that said return is untrue, and ho hereby traverses the same, and he prays the court to make said A. J. Walton, sheriff, a party to this case by proper order.” By amendment this allegation was stricken. The case proceeded to trial, and the jury returned a verdict in favor of the defendant. The plaintiff filed a motion for new trial, and excepted to the judgment overruling it. It appeared
Now the first question presented by the motion for new trial may be stated thus: Was the testimony of the defendant that he had not been served inadmissible for the reason that he filed no traverse of the entry of service and did not make the sheriff a party? This question should be answered in the negative. It seems to me that sufficient reason for this answer is that no entry of service appeared. If the defendant is required to file a traverse in such a case, he must admit an entry when none appears; and if there be some evidence that there was no entry, he must speculate whether the court will hold that there was an entry. “The entry of the sheriff . . may be traversed by the defendant at the first term after notice of such entry is had by him.” Code, § 81-214. In Dozier v. Lamb, 59 Ga. 461, Judge Bleckley, in holding that an entry is the chosen witness of the law and can not be contradicted, presupposed, as does the statute, the actual existence of the return.
In passing on a case similar to the one at bar, Pottle, J., in McLeod v. Bird, 14 Ga. App. 77, 79 (80 S. E. 207), said: “If the record is silent on the question, then the presumption in favor of the court’s judgment would give aid to the party obtaining the judgment, and the burden would be upon any one attacking the judgment to show that he was not served. If the record is lost, and therefore it can not be ascertained whether the court had in fact before it evidence of service, the person attacking the judgment would make out a prima facie case by showing that he had never in fact been served. It is not essential that he should go further and show that no entry of service had been made by any