19 Ga. App. 19 | Ga. Ct. App. | 1916
1. The return of service by the deputy sheriff was traversed, and he was duly made a party to the proceedings, by order of the court. There was, however, no attempt to make the sheriff also a party. • “Objections to the return of a deputy sheriff which shows legal service on a defendant must be raised before judgment, by a plea in abatement, and in connection therewith the return must be duly traversed, and both the sheriff and the deputy sheriff are necessary parties to the traverse.” Georgia Railway &
3. The sheriff and the sureties on his official bond were vitally interested in the question raised by the traverse to the return made by his deputy (O’Bryan v. Calhoun, 68 Ga. 215); and, in the absence of a proper traverse, with the sheriff a party thereto, as well as the deputy sheriff, the traverse was a mere nullity, and the return itself remained conclusive as to its recitals. The failure to object .on account of the fact that both the sheriff and his deputy were not made parties could not “vitalize that which falls short of what the law declares necessary in order to even raise an issue of this kind for trial; and it follows as a logical sequence that the _ entire attack made on the return of the sheriff, including the judgment of the court, and regardless of whether the court reached the right and proper conclusion upon legal and sufficient evidence or not, left matters exactly where they were when the attempted traverse was filed, to wit, with a legal and sufficient return from the officer, showing service upon the defendant, which is conclusive as to such service, in the absence of such an attack as constitutes the sole attack authorized by law.” Georgia Ry. & Power Co. v. Davis, supra. Judgment affirmed.