5 Ga. App. 804 | Ga. Ct. App. | 1909
J. G. Smith & Sons, a corporation, filed a suit upon a note in the city court of Baxley, against Carter and others, with the usual process attached. The entry of service as to Carter was in the following words; “I have this day served the defendant J. H. Carter with a true copy of the within petition and process by leaving said copy at his place of business.” At the appearance term Carter filed the following traverse of the return
We think the court properly struck the demurrer. It is technically a written motion to dismiss, but, this being its nature, it was not improperly considered by the lower court as a demurrer. In his brief, counsel for the plaintiff in error seems to be of the impression that the court considered the traverse as the demurrer, and that he overlooked the motion to dismiss, which was on a
In the Gox case, supra, no plea was filed. Counsel for Cox, upon the call of the appearance docket, orally answered, and their names were marked. At that time this was held to be equivalent to a filing of a plea of general issue; but Chief Justice Jackson, in delivering the opinion, held only that the plea which would effect a waiver of service must be a written plea; and the ease
The traverse was properly dismissed, because the officer was not a party; and the motion to dismiss, treated as a demurrer, was properly overruled, because the defendant filed his plea and waived service of process. .Judgment affirmed.