15 Ga. App. 427 | Ga. Ct. App. | 1914
The Citizens Bank of Bainbridge brought suit in the city court of Blakely against A. Fort, upon two promissory notes. Process was issued, directed to the sheriff of the city court of Blakely, and a return of personal service was made. The entry of service was signed, “T. J. Howell, sheriff.” Fort interposed an alleged plea of non est factum, and the defense that the bank was not an innocent holder of the notes, accompanied by a plea of failure of consideration, and' also a plea in which it was alleged that he was overreached, intimidated, and coerced into signing one of the notes. He assumed the burden of proving that the bank took the notes with full notice of his defenses. At the conclusion of the evidence counsel for the plaintiff moved that the court direct
In a cross-bill of exceptions it is complained that the court erred in striking a plea in abatement, in which it was alleged that the entry of service was void and that the defendant had never been legally served with process; that while Howell, who was sheriff of Early county, and who purported to have served the defendant, should be ex-officio sheriff of the city court of Blakely, he was not qualified to act in that capacitjq by reason of the fact that he had failed to take the oath or give the bond required by the act creating the city court of Blakely, and that his bond had not been approved by the judge of that court, as required by law. This plea was stricken, on the ground that it set forth no valid and legal defense; and although in the motion to strike it is alleged in addition that the plea shows on its face that Howell was a good de-facto officer, it is not necessary (in the view that we entertain) to consider that
1. In view of its logical and chronological precedence, we shall first consider the point raised by the cross-bill of exceptions. The plea in abatement was fatally defective, and it was properly held that the plea presented no legal defense. Prima facie, one who signs an entry of service as sheriff will be presumed to be sheriff in the jurisdiction in which he purported to act. Young v. Germania Savings Bank, 132 Ga. 590 (6), 491 (64 S. E. 552); Rucker v. Tabor, 126 Ga. 132 (54 S. E. 959). Where a record shows a return of service prima facie valid, the objection to lack of service can be made only by a plea in abatement accompanied by a traverse of the official return. Bell v. New Orleans & Northeastern Ry. Co., 2 Ga. App. 812 (59 S. E. 102). Consequently a person purporting as an officer to have made a return of service is so indispensable a party to the traverse that the presumption that he was qualified to act in serving the process which he undertook to serve can not be rebutted until he has had an opportunity to be heard. Georgia Ry. & Power Co. v. Davis, 14 Ga. App. 790 (82 S. E. 387, 388). Prima facie, at least, the return of an officer imports verity; and when there is no traverse of a sheriff’s entry of service, any question as to whether the defendant was- legally served may be disregarded. It being stated in the plea itself that T. J. Howell is the sheriff of Early county, and that under the law creating the city court of Blakely the sheriff of Early county is ex-officio sheriff of the city court of Blakety, the writer would be inclined to hold that his' acts in serving process as sheriff of the city court of Blakely would be valid, as the acts of a de-facto officer, although he may not have qualified by taking the oath or giving the bond required by law. In this connection see Cooper v. Ricketson, 14 Ga. App. 63-68 (80 S. E. 217); Smith v. Meadow, 74 Ga. 416 (58 Am. R. 438); Penn v. McGhee, 6 Ga. App. 631 (3), 635 (65 S. E. 686); Gunn v. Tackett, 67 Ga. 725; Harrison v. Richardson, 99 Ga. 763 (27 S. E. 173). However, since we are of the opinion that the plea in abatement was fatally defective for the reason that there was no traverse of the entry of service, and that therefore the purported officer’s lack of authority was not properly attacked, nor an opportunity afforded him to defend his title, it is not necessary to determine whether the service by Howell was in fact good as the act of
2. Only two points are pressed upon our consideration by counsel for the plaintiff! in error in the main bill of exceptions,—the one that an oral request for the entire charge of the court to be reduced to writing and read to the jury is ineffective, and the other the contention that a mere direction of a verdict, with instructions to one of the jurors to sign such verdict, is not a charge of the court within the meaning of section 4847 of the Civil Code, which prohibits a judge from delivering any instructions not reduced to writing, read to the jury, and filed, whenever he is required by either party to deliver his entire charge in writing. According to the uniform practice in this State, so far as we are aware, requests that the entire charge of the court be reduced to writing and read to the jury have generally been presented orally, and it has never been held that it was essential to reduce such a request to writing. We have been unable to find any decision in which it was ruled that the request must be reduced to writing. In conformity with usage, as well as upon reason, we are constrained to hold that by timely oral request a judge may be required to comply with section 4847 of the Civil Code, and to confine his instructions to the jury entirely to a written deliverance. The very apparent reason for the passage of the act requiring a trial judge to reduce his charge to writing when requested so to do does not extend to the mere request, which is nothing more than the medium or instrumentality by which the litigant’s desire for written instructions is conveyed to the court. The purpose of the requirement that a judge shall when requested reduce his entire charge to writing is to prevent any dispute or question as to what was charged by the court; and to this end the statute requires that the instructions as written out and read shall be immediately filed with the clerk. For a like-reason it is necessary that requests for instructions upon specific points be reduced to writing, as required in section 6084 of the .Civil Code. If any
3. Since the trial judge overruled all the grounds of the motion for new trial save the one in which it wás insisted that the judge erred in failing to reduce to writing his instruction to the jury to find a verdict in favor of the plaintiff, and granted the new trial expressly on that ground, the decision in this case is necessarily controlled by the ruling of the Supreme Court in Harris v. McArthur, 90 Ga. 216 (4), 217 (15 S. E. 758), in which, upon a state of facts practically identical with those presented in this ease, the
Judgment affirmed on both bills of exceptions.