133 Ga. App. 32 | Ga. Ct. App. | 1974
The district attorney of the Stone Mountain Judicial Circuit filed identical scire facias on March 4, 1974, seeking bond forfeitures against the defendant as surety in the criminal cases of Henry Williams and David Kitchen, arrested on narcotics charges, resulting from their failure to appear on the date set (the first Monday in January, 1974). The defendant answered in each case that (1) no claim was stated, (2) the pleading failed to conform to the Civil Practice Act, (3) defendant denied all allegations of the petition, and (4) there had been no legal service.
A rule absolute was issued on June 17, 1974; subsequently a hearing was had on June 21, and on June 24 a final order was entered denying the motion to dismiss, holding the petition sufficient and service good. Fi. fas. were issued. Error is enumerated on both these orders. Held:
1. Neither from the briefs nor record in this case do we find any satisfactory explanation for the sequence of events above set out. However, neither the pleadings nor evidence offered on June 24 include the bond itself, the execution of which was denied by the defendant’s
2. The entry of service of the rule nisi, which was traversed, reads: "I have this day served the Defendant -, Principal, and O. K. Bonding Co., Charlie Mitchell, Mgr., Security, with a copy of the within rule nisi, dated April 3rd, 1974. Signed L. M. Eberhart, Sheriff.” This witness testified that he served Charlie Mitchell personally at the place of business of O. K. Bonding Co., that he had known Mitchell for some 20 years and that he was the manager. The fact that he also testified that Mitchell told him he was the manager does not render the service bad, there being no objection to the statement and no scintilla of evidence to indicate that he was not a person authorized to accept service for the defendant. The court correctly overruled the traverse of service.
Judgment reversed.