7 S.E.2d 246 | Ga. | 1940
On application of governing principles of law to the pleadings in a suit to cancel deeds as a cloud on title, recovery of damages for timber cut from land, and other equitable relief. Held that the petition was subject to general demurrer, and that the action was correctly dismissed.
The original defendants filed a general demurrer to the original petition on the ground that it set forth no cause of action. On October 2, 1939, the court entered an order overruling this demurrer. On October 4, 1939, the plaintiff amended her petition by setting forth year's support proceedings, made the beneficiaries of the year's support parties to the case, and alleged that the general description in the appraisers' return setting apart "all real estate" was not intended to include, and did not include, the tract of land sued for, by reason of the sheriff's deed and adverse possession *721
thereunder, and other alleged facts. The amendment also prayed relief, as to this return, against the widow and minor children. After this amendment the original defendants, in possession of the land, filed a second demurrer, renewing their first demurrer to the original petition as amended, and presenting the additional ground that the amended petition showed no title in the plaintiff. On October 4, 1939, the judge entered an order sustaining this second demurrer, and dismissing the petition as amended. The plaintiff excepted to this last judgment.
1. "While it is the rule that `a judgment overruling a general demurrer to a petition, unless excepted to and reversed, is an adjudication that the petition sets forth a cause of action, and the court may not by indirection deprive the plaintiff of the estoppel he is entitled to urge as against the defendant' (Turner v. Willingham,
2. On an affidavit of illegality, attacking a judgment by a court of general jurisdiction as void for want of service, it is "necessary for the defendant to show affirmatively, not only that he has not been served, but that he has not waived service by appearance, pleading, or otherwise" (Jones v. Bibb Brick Co.,
(a) Whether or not personal service of a scire facias in a criminal bond forfeiture under the Code, § 27-906, must be made personally upon the surety if he resides in the county, so that service by merely leaving a copy at his home would be insufficient (see Atwood v. Hirsch,
(b) As to the additional ground of attack on the sheriff's deed and the judgment, because the scire facias was served less than the twenty days before the return day, required by the Code, § 27-906, the ruling just made as to the failure of the petition or record to show any express or implied waiver of such a possible defect renders it unnecessary to determine whether the provisions of the Code, § 81-218 (Ga. L. 1884-1885, p. 103), that "whenever process is not served the length of time required by law before the appearance term, such service shall be good for the next succeeding term thereafter, which shall be the appearance term." would be applicable to a scire facias under § 27-906, so as to prevent *724
service within the twenty days before the appearance term fixed by the writ from being invalid, if the judgment is not taken before the next succeeding term. See Braxton v. Candler,
3. Under the preceding holdings, the trial judge having correctly dismissed the petition on the first renewed general demurrer for the reasons stated, it is unnecessary to consider the question raised by the second demurrer, as to whether the amendment to the petition of the administratrix, setting forth year's support proceedings, showed that the title to the property sued for was in the widow and children of the decedent.
Judgment affirmed. All the Justices concur.