137 Ga. 596 | Ga. | 1912
0. F. Dean and others filed their equitable petition against J. H. Tomberlin, W. E. Brown, and J. T. Brown, to the March term, 1910, of Appling superior court, alleging Tomberlin to be a resident of Pierce county, W. E. Brown to be a resident of Appling county, and J. T. Brown to be a resident of Florida, and praying'for am. injunction, appointment of a receiver, cancellation of the', transfer, of certain letters patent, judgment against the defendants,. Met the sale of the letters patent. A temporary order was granted by^the 'judge, restraining the defendants from selling or in any 'manner disposing of the letters patent in question. W. F. Brown was served with a copy of the petition and process on the 22d day of November, 1909, and J. T. Brown, who was a resident of "Wayne county, Georgia, (although alleged to be a citizen of Florida), was served with copy of the petition and process, May 2, 1910, by the deputy sheriff of Wayne county, Georgia. The plaintiffs amended their petition, after the service of J. T. Brown, by alleging that the latter was not a citizen of Florida, but was a citizen of Wayne county, Georgia. At the interlocutory hearing and at the first term of the superior court when the petition'was
We think the court erred in directing the verdict of which complaint is made. Undoubtedly, where suit has been properly brought, and the defendants are served with copies of the petition 'and process, and fail to appear in court, or make answer, and are in default, the averments plainly and distinctly made in the plaintiff’s petition shall be taken as prima facie true, unless the defendant, states in his answer that he can neither admit nor deny such answer because of the want of sufficient information. Civil Code (1910), § 5539. The record shows that W. F. Brown, one of the defendants, was served with a copy of the petition and process, but not with the amended petition. J. T. Brown, although alleged to be a citizen of Florida, was served with a copy of the petition and process in Wayne county, Ga., personally by the deputy sheriff of that county, but not with the amended petition. In fact the service was made before the petition was amended. The amendment was material to the action. The answer of the defendant Tomberlin admitted various allegations in the plaintiff’s petition, but denied others, and his cross-bill alleged a cause of action against his co-
Judgment reversed.