Russell v. Life Insurance

34 Ga. App. 640 | Ga. Ct. App. | 1925

Bell, J.

This action was filed in the superior court of Barrow county which has four regular terms of court yearly. By an act approved August 18, 1923, pending the litigation, the times for holding court were changed. See Ga. L. 1923, p. 63. This statement will obviate the confusion which might otherwise arise from the following statement as to the terms of court. The suit was filed and process was issued thereon to the September term, 1922. No service having been made in the meantime, the plaintiff’s attorney, on learning of this fact, applied to the court at the next succeeding term, being the December term, 1922, for an order to perfect service, and the judge granted an order as follows: “It being made to appear to the court that there has been no service of copy under this petition, it is thereupon ordered by the court that service of copy hereof be now made, and that the March term, 1923, be made the appearance term of this case.” It will be noticed that this order did not provide in express terms for an amendment of the process. The defendant was served on December 26, 1922, with, a copy of the petition and of the old process calling upon Mm to appear at the preceding September term. At the March term, 1923, he appeared and made a motion to dismiss the suit, on the ground that the attempted service was void, because there was no process requiring him to be and appear at the March term, 1923. Nothing further was done in the ease until the April term, 1924. At this term the court ruled that no proper service had been made, but passed an order making the following July term the appearance term, and directing the clerk to issue a new process, returnable thereto, and requiring that service of a copy of the petition and of all orders and of the new process be made upon the defendant fifteen days before the July term, 1924; and service was made accordingly. The court also, at the April term, 1924, overruled the defendant’s motion to dismiss the action, filed at the March term, 1923, and the defendant duly excepted pendente lite. At the April term, 1925, the case came on for trial and resulted in a directed verdict in favor of the plaintiff for the principal, interest, and attorney’s fees as sued for, and the defendant has brought the ease to this court for review. In the bill of exceptions the defendant has assigned error on his exceptions pendente lite to the overruling of his motion to dismiss the action, and also upon a judgment at the term of the trial, overruling a demurrer theretofore duly filed by him, attacking so much of the petition as sought a recovery of attorney’s fees. There is no contention that the evidence at the trial did not'demand the verdict.

It is within the power of the judge of the superior court at the appearance term or at a subsequent term, where due diligence is shown, to grant an order allowing a. new process to issue, and directing that the defendant be served, where service has not been previously made. Rowland v. Towns, 120 Ga. 74 (2) (47 S. E. 581). In the absence of evidence showing that the plaintiff had been guilty of neglect, this court can not say that the trial judge should not have granted the order at the December term, 1922, directing that the succeeding March term, 1923, should be the appearance term, and that the defendant should be served for that term. And as to the subsequent proceedings, the plaintiff having applied at the second term for an order to perfect service, and service of a copy of the petition and the original process having then been made, such service, though irregular, was not void and could have been amended, although the “clerk neither changed the date of the original process nor appended a new process, nor did he attach this order to the original writ and copy.” Baker v. Thompson, 75 Ga. 164. This being true, the present case is distinguishable from Union Marine Fire Ins. Co. v. McDermott, 31 Ga. App. 676 (121 S. E. 849), in which the process attached to the petition was held to be void, and in which, therefore, the rule was applicable that the judge had no authority at or after the return term to order a process to issue where none whatsoever, or only a void process, had been previously issued. The case is also unlike that of Nail v. Popwell, 32 Ga. App. 20 (122 S. E. 632), because in that case there was no service or entry of service. As was said by the Supreme Court in Atlantic &c. R. Co. v. Singletary, 159 Ga. 805 (126 S. E. 794), “This case is different in its facts from those cases where there was no return and entry of service, and several terms of court had elapsed before an order was asked for service.” Since the plaintiff moved at the second term to have service perfected, and since, the service then ordered to be made for the next ensuing term was only defective, and not void, this court can not hold that the plaintiff was guilty of laches in not asking for further service before the trial court had adjudicated that the service that had been made was insufficient. We are of the opinion that the ease is controlled by the decision of the Supreme Court in the Singletary case above cited.

2. The second headnote requires no elaboration. See Toole v. Cook, 15 Ga. App. 133 (3) (82 S. E. 772).

Judgment affirmed on condition.

Jenkins, P. J., and Stephens, J., concur.