14 Ga. App. 77 | Ga. Ct. App. | 1913
The issue tried arose upon an affidavit of illegality, which, set up that the judgment was void because the defendant had never been legally notified of the pendency of the suit and did not waive service by appearing and pleading or otherwise. The affiant insists that the court erred in holding that he carried the burden of establishing the truth of his affidavit of illegality, on account of the fact that there had been no joinder of issue. It has been distinctly held by the Supreme Court that where the parties in an illegalit}' case do not join issue in writing, the facts stated in the affidavit of illegality must be taken as true, and the affiant is not bound to proceed to trial before a jury where there has been no traverse of the grounds of illegality. Thompson v. Fain, 139 Ga. 310 (77 S. E. 166). It is pointed out, however, in that decision that if the parties should proceed to a trial of the truth of the grounds of the affidavit of illegality'' without objection, this perhaps would amount to a waiver of the right to thereafter raise the point that issue was not formally joined. In the jjresent case the affidavit did not in the court below distinctly object to proceeding to trial before issue was-joined; and, by introducing evidence to sustain the truth of his affidavit of illegality, without a distinct objection on this ground, he must be held to have waived the joinder of issue.
The court erred, however, in directing a verdict against the affiant. In the absence of proof to the contrary, there is a presumption in favor of a court of general jurisdiction, that it would not render a judgment unless it had before it evidence of legal service. This presumption, however, is always subject to be rebutted by proof, because a judgment rendered without service or waiver thereof is absolutely void. If the records of the court show evidence of legal service, then the burden is on the party challenging the jurisdiction of the court, to show that the record does not speak the truth. In order to do this, he must traverse the return of the officer showing service, at the first term of the court after