49 Ga. App. 211 | Ga. Ct. App. | 1934
Thomas T. Hattaway and Edward B. Keel brought an action against Prudential Insurance Company of America on an insurance policy. We quote from the bill of exceptions as follows: “The petition in said case was filed on the 3d day of July, 1933, returnable to the July term, 1933, of said court, which court convenes on the fourth Monday in July, 1933, which was the 24th day of July, 1933.” “By the provisions of the act creating the city court of Sandersville, defendants in said court are required to file with the clerk of said court at least five days before the first term of said court all defenses, either by way of demurrer or plea. On the 22d day of July, 1933, two days before the first day of the first term of said court, defendant filed with the clerk of said court its plea in abatement and traverse of the return of service of the petition and process in said case upon the defendant. Subject
“To the'judgment and decision of the court rendered on the 24th day of Juty, 1933, adjudging and deciding that said case was in default and that it was in order for verdict and judgment to be rendered therein by default, defendant . . excepted, and . . excepts and assigns error thereon, as being contrary to law, and
In their brief counsel for defendants in error state that they moved to dismiss the traverse and plea upon specified grounds, that the court dismissed it upon their motion, and that an exception to a ruling upon pleadings is not proper subject-matter of a ground of a motion for a new trial. In the first place, the record does not show that the traverse and plea was dismissed upon motion; and the record determines the questions which this court must decide. In the second place, whether the motion for a new trial was or was" not the proper remedy to pursue, the bill of exceptions was tendered and certified within thirty days of the judgment of July 24, 1933, adjudging and deciding that the case was in default and-that it was in order for a verdict and judgment to be rendered therein by default, and the case is properly before this court by direct exceptions. See, in this connection, Civil Code (1910), § 6144; Wright v. Hollywood Cemetery Cor., 112 Ga. 884, 894 (38 S. E. 94, 52 L. R. A. 621); Copeland v. Gilbert, 24 Ga. App. 387 (100 S. E. 775).
Section 38 of the act creating the city court of Sandersville (Ga. L. 1901, pp. 164, 173) provides that “all defenses, either by way of plea or demurrer, shall be filed by defendants at least five daj^s before the term of the court to which the suit is returnable.” Plaintiff in error filed its traverse two days before the first day of the first term of court, and (according to the plea and traverse) within one day after notice of the entry of service. Under the Civil Code (1910), § 5566, “The entry of the sheriff or any officer of the court, or his deputy, may be traversed by the defendant at the first
The demurrer merely avers that the officer’s entry of service “does not constitute any legal return of service upon the Prudential Insurance Company of America.” The return of service was not void, and was amendable. Pennsylvania Casualty Co. v. Thompson, 123 Ga. 240 (51 S. E. 314); Love v. National Liberty Insurance Co., 157 Ga. 259 (121 S. E. 648); Hayes v. American Bankers Insurance Co., 46 Ga. App. 552 (167 S. E. 731). We think, however, that orderly procedure required that the demurrer attacking the return, or evidence of service, should have been disposed of first, and that then the issue of fact of service raised by the traverse and plea should have been determined. See, in this connection, Anderson v. Fulton County Homebuilders, 147 Ga. 104 (92 S. E. 934); Avery v. Middlebrooks, 20 Ga. App. 724 (93 S. E. 227).
Judgment reversed.