Heyman v. Decatur Street Bank

16 Ga. App. 14 | Ga. Ct. App. | 1915

Broyles, J.

We think it necessary to discuss only the point dealt with in the 4th headnote in regard to the service upon the non-resident partner. This was the point most strongly urged in the brief of counsel for the plaintiffs in error. Section 4675 of the Civil Code provides that “Suits against makers and indorsers, and against co-obligors or joint makers, may be located in the district where the principal debtor or one of the co-obligors or joint makers can be sued, and the other parties, who may reside in a different district from such in the same county, may be joined in the suit on the same terms such persons residing in different counties may be sued in the superior courts, but by the process used in justices’ courts; and in such cases the constable of the district where the suit is located may serve such process in any part of the county” (italics ours). Section 4719 of the Civil Code provides that “In case where suit is brought against joint obligors or joint promisors, or other joint debtors, . . in all these and like cases, the constable of the district in which suit is brought may serve all processes on all the parties, and do all other legal acts required of him in the progress of such suit, in any district of the county” (italics ours). So it seems clear that if this suit had been brought in a justice’s court (providing, of course, the amount had been within its jurisdiction), and if the service had been made on O. L. Hey-man by the constable of that court, the service would have been valid if made in any district in the county. This is practically 'admitted in the brief of counsel for plaintiffs in error, but it is insisted that the marshal of the municipal court of Atlanta has no such authority, and that the office of constable in the city of Atlanta was abolished when the municipal court of Atlanta was created, and that the marshal of that court did not fall heir to the rights and powers of the constable. We can not agree with the learned counsel in this view of the law, for the act creating the municipal court of Atlanta, approved August 20, 1913 (Acts 1913, p. 145), expressly and directly provided that the marshal of the court, and his lawful deputies, should have all the rights, powers, and authority possessed by a constable of a justice’s court in this State. In section 24 of the act above mentioned (Acts 1913, p. 157) it is provided that "the duties, powers, rights, authority and liabilities of said marshal, and each of said deputies, shall be the same as those prescribed for constables elected or appointed, and serving in justice courts of this State.” And in section 26 of the same act it is provided that "the municipal court of Atlanta shall have all the jurisdiction as to subject-matter which, at the time of the adoption of the said constitutional amendment, was exercised by the justices’ courts 'and the justices of the peace under the constitution and laws of this State.”

So, in our opinion, the service made by the deputy marshal of the municipal court of Atlanta upon O. L. Heyman, the non-resident partner, was a good and valid service, and the lower court did not err in so holding. Judgment affirmed.