Cooper v. Fourth National Bank

26 Ga. App. 44 | Ga. Ct. App. | 1920

Bloodworth, J.

(After stating the foregoing facts.) The brief for the plaintiff in error limits this court to the consideration of a single issue, to wit, is the service of the summons on the defendant, as shown by the entry of service and by the evidence on the traverse, sufficient ? The provisions of the statute in reference to service of summons issued by authority of the municipal court of Atlanta are found in section 36 (Ga. L. 1913 p. 163), and are as follows: “Such summons and copy shall be served by the marshal, or his deputy, by delivering a copy thereof to the defendant, or by leaving such copy with some person more than eighteen years old domiciled at the residence of the defendant; and the marshal, or his deputy, as the case may be, shall make return of service, stating the method thereof; and, where personal service is not made, the marshal or his deputy, as the case may be, shall state the place where summons was left, with a brief description of the person with whom it was left, giving the name of such person if possible.” There can be no doubt that the defendant resided at No. 567 South Pryor street, and that service was perfected on a person “ more than eighteen years old, domiciled at the residence of the defendant.” Suppose the defendant had been asked where he resided, would he not have replied, “ At 567 South Pryor street?” The statute in reference to service of process issued by the clerk of the superior court provides that “leaving a copy at the defendant’s residence shall be a sufficient service.” Civil Code (1910), § 5563. Summons issued by a justice of the peace may be served on the defendant “ by leaving such copy at his usual and most notorious place of abode.” Should a sheriff go to the residence of the defendant and push under the door a copy of a suit, with proper process attached, or if a bailiff should make a similar service of a summons issued by a justice of the peace, this service would be good. Why? Because the service has been perfected in the manner provided by statute. As' persuasive argument of the position we take in this matter we quote from Lovin v. Hicks, 116 Minn. 182 (133 N. W. 576), as follows: “It is true that the statute, providing as it does for a substituted service, should be construed with reasonable strictness; but a construction should not be adopted that would" defeat the purpose of the statute, or make it unreasonably difficult to obtain service of summons or process. The reason for permitting this substituted service is that, where the summons is left at the usual place of abode of the defendant and with a person of suitable age and discretion, defendant will in all probability receive it. To hold that the summons must be actually left in the house or in the rooms that constitute the place of abode would make it easy to avoid the service, and unreasonably difficult for the service”

In McLeay v. Davison-Paxon-Stokes Co., 18 Ga. App. 134 (88 S. E. 992), the entry of the constable who served the summons issued by a justice of the peace was as follows: “ Served the defendant with a copy of the within summons and note by leaving the same at her most notorious place of abode.” Upon a trial of the issue formed by a traverse to this return the husband of the defendant testified that together with his wife and family he rented and occupied apartments “ at the Georgian Terrace Apartment House, which apartments were separate and distinct from all other apartments in said apartment house, except that all tenants in said apartment house used the same hall, which was one of several ways of entrance into said building; that his apartment was furnished by himself, and that all supplies for himself and family, as well as all packages, were delivered direct to his apartment, and that his said apartments were as separate and distinct as any individual residence of a family might or could be; . . that said Georgian Terrace Hotel is a hostelry separate and distinct from said apartment house; -that guests are entertained at said hotel, which has no connection with the tenants o£ said apartment house; that the guests at said hotel are provided for on either the American or the European plan, and are furnished with all accommodations incident to a hotel.” This service was held good by this court. The record in the case under consideration shows that the defendant was served in the manner pointed out by law, and that the statute was conformed to in the entry of service. When this has been done the service is good although the defendant may never see or receive the summons. See, in tins connection, Moye v. Walker, 96 Ga. 769 (1) (22 S. E. 276); Burbage v. American National Bank, 95 Ga. 503 (20 S. E. 240); Hays v. Fourth National Bank of Atlanta, 17 Ga. App. 409 (87 S. E. 147).

Judgment affirmed.

Broyles, C. J., and Luke, J., concur.