McKnight v. Wilson, 158 Ga. 153

McKnight v. Wilson

158 Ga. 153 | Ga. | 1924

Hines, J.

At the conclusion of the evidence the plaintiffs moved that the court direct a verdict in their favor, which the court refused to do. To this ruling the plaintiffs filed their exceptions pendente lite, and they assign error upon the ruling. The refusal of the court to direct a verdict is not error requiring a reversal in any case, even though such verdict could have been properly directed in favor of the complaining party. Easterling v. Cowart, 149 Ga. 161 (99 S. E. 301); Reed Oil Co. v. Smith, 154 Ga. 183, 185 (114 S. E. 56).

By agreement between counsel for both parties it was stipulated that either of the parties could, upon the trial of this case, introduce the affidavits of all witnesses which had been used upon the preliminary hearing for an injunction, and use the testimony of such witnesses embraced therein, without producing the witnesses and having them sworn in person before the jury. In pursuance of this agreement the plaintiffs introduced the affidavits of the plaintiff, S. H. McKnight, who was a resident of Florida, and C. B. Brown. In his argument before the jury, counsel for the defendants, in commenting upon the testimony of these witnesses, stated that the plaintiffs should have brought these witnesses into court, so that they could confront the jury and the jury could observe their manner upon the stand, and the defendant subject them to cross-examination. The plaintiffs objected to this argument, upon the ground that it was improper and prejudicial, and that counsel had no right to make such an argument after he *160had entered into 'an agreement to try the case at the first term upon the affidavits introduced at the interlocutory hearing. The court refused to stop counsel from so arguing, and failed to reprimand him, the judge stating that he would not limit or control counsel’s argument. Counsel for the defendants proceeded to argue in this strain, stating to the jury that the plaintiffs should have brought the witnesses into court, that he had been trying to get the witnesses into court, but had not been successful in so doing, and‘that the plaintiffs failed to bring them into court. To, the court’s refusal to reprimand counsel, and to limit his argument to the proved facts and circumstances, the plaintiffs excepted upon the ground that it was erroneous to allow counsel to make such an argument, as it was prejudicial to their ease, and was unauthorized by the law and the facts. After counsel for the defendants had agreed that the plaintiffs might, on the main trial of the case, introduce in evidence affidavits of witnesses which had been introduced in their behalf upon an interlocutory hearing, and use the evidence embraced in such affidavits before the jury upon such trial, without producing the witnesses and having them sworn in person before the jury, where such affidavits were in fact introduced upon the trial of the case in evidence before the jury, it was improper and prejudicial to the plaintiffs for counsel for the defendants, in his argument, to undertake to disparage the testimony of such witnesses upon tire ground of their non-production, the jury’s lack of opportunity to observe their manner on the stand, and his lack of opportunity to cross-examine them; his waiver of the presence of the witnesses being a waiver of these rights and advantages. Especially harmful and prejudicial was the remark of counsel for the defendants, that he had been endeavoring to get the witnesses into court, and had been unsuccessful, where there was no proof of this fact. Civil Code (1910), § 4957; Hunter v. State, 133 Ga. 79 (65 S. E. 154); Butler v. State, 142 Ga. 286 (82 S. E. 654); Pelham v. Elliott, 11 Ga. App. 621 (75 S. E. 1062).

The court charged the jury as follows: ' “If you find that he did not traverse the entry of the sheriff showing service upon him at his most notorious place of abode at the next term of superior court after he acquired knowledge of such .service, then your verdict should be in favor of the defendant.” Plaintiffs ex*161cepted to this instruction, on the grounds, (a) that it was contrary to law, the law. not requiring a traverse to be filed until the first term after the defendant has acquired knowledge of the entry of service, and not after he had acquired knowledge of a void service; and (&) that the court failed to designate the service to which he referred, there being a service of summons of garnishment of which the plaintiff, McKnight, admitted having knowledge in January, 1923. That the last exception to this instruction is without merit, as this instruction plainly refers to the service of process in the suit in which judgment was rendered against McKnight. But we think this instruction was erroneous for the reason that the failure of the defendant to traverse the entry of service of this suit at the first term after he had notice thereof, if such were the fact, did not preclude him from having the judgment rendered in such suit set aside and its enforcement enjoined, if he did not reside in the county when the suit was instituted and service was sought to be made upon him. A belated traverse of an entry of service, where the court has jurisdiction of the person of the defendant, will preclude the defendant from showing such return to be false. In such a case the defendant will be concluded by the judgment. Civil Code (1910), § 5566; Elder v. Cozart, 59 Ga. 199(3); Sanford v. Bates, 99 Ga. 145 (25 S. E. 35). But such return is not evidence as to matters which are not properly the subject of the return. Kimsey v. Macon L. Co.. 136 Ga. 369 (71 S. E. 675). If the record shows a regular return of service by the officer, “such return will be conclusive until traversed according to law, unless it be made to appear that the court, with actual service, would have had no jurisdiction of the defendant or of the subject-matter.” Maund v. Keating, 55 Ga. 396. The constitution of this State declares that all civil eases, with certain exceptions, “shall be tried in the county where the defendant resides.” Civil Code (1910), • § 6543. A judgment, founded upon a suit in a court which had no jurisdiction of the person of the defendant is void, unless the defendant waived jurisdiction or appeared and pleaded to the merits. Civil Code (1910), § 5964; Bostwick v. Perkins, 4 Ga. 47; Preston v. Clark, 9 Ga. 244; Graham v. Hall, 68 Ga. 354; Mauck v. Rosser, 126 Ga. 268 (55 S. E. 32). Illegality will not lie to attack the validity of such judgment, as that would be going behind the judgment. *162Mangham v. Reed, 11 Ga. 137; Hood v. Parker, 63 Ga. 510; Harbig v. Freund, 69 Ga. 180; Southern Ry. Co. v. Daniels, 103 Ga. 541 (29 S. E. 761). But in such case the defendant can resort to a motion to set aside the judgment, or to a court of equity to have such judgment canceled. Swinney v. Watkins, 22 Ga. 570; Jordan v. Callaway, 138 Ga. 209 (75 S. E. 101). Applying the above rulings, this charge of the court was not properly adjusted to the facts of the case, and was erroneous.

As we grant a new trial, we do not pass upon the sufficiency of the evidence to support the verdict.

Judgment reversed.

All the Justices concur.