52 Ga. 22 | Ga. | 1874
1. The law requires that a process shall be annexed to the petition and copy petition, unless the same be waived: Code, section 3334; and that it shall be served on the defendant: Section 3339. Process and service may be waived by a writing signed by the defendant or some one authorized by him: Section 3337. Appearance and pleading shall be a waiver of all irregularities of the process, or of the absence of the process, and the service thereof: Section 3335. Here, then, are the requisitions of the law, and the provisions as to how they shall be executed, and of what will dispense with them. There must be a process, or a waiver thereof in writing, or an appearance and pleading. In this case there was neither. We cannot say, in view of the judiciary act of 1799, and the decisions made under it, and the special provision still retained in the Code, section 3334, for a process, that such a writ (the process) is an immaterial thing, and is to be so lightly considered as plaintiffs in error seem to think. It is the official notice signed by a sworn officer, which is to inform the defendant of the suit against him, and that he must appear and answer. The law allows him to waive it directly by signing a writing to that effect, or indirectly waive it, by recognizing the suit by putting in his appearance and pleading. Without something of this, what official notice has he that suit is pending against him ?
2. But the plaintiff claims that he should have been permitted to attach a process, and make an amendment to the acknowledgment of service nunc pro tunc. This motion was sustained by no proof. Section 3490 of the Code says: “Void process, or where there is no process or waiver thereof, cannot
Judgment affirmed.