28 Ga. App. 424 | Ga. Ct. App. | 1922
1. “ Attached to the original petition was the form of a process, but with no signature of the clerk thereto. To the copy of the petition which was served upon the defendant was attached a complete process duly signed.” “ The defect in the process attached to the original petition was amendable, and might be cured by the clerk’s attaching his signature thereto nunc pro tunc.” Myers v. Griner, 120 Ga. 723 (2), 725 (48 S. E. 113). In the instant case the sole question, under the agreement of counsel, was whether the previous judgment pleaded by the defendant and collaterally attacked by the plaintiff was “ a legal and binding judgment as it stood.” It is controlled by the case cited above. Even could the petition in the former case have been dismissed pending that proceeding, as was done in Rowland v. Towns, 120 Ga. 74 (47 S. E. 581), and even could the former judgment have been set aside in a proper proceeding instituted for that purpose, the instant attack upon that judgment is not such a motion or proceeding. The defect in the original process being curable by amendment, the former
2. Eor the reasons stated, it was error to sustain the certiorari from the ruling of the municipal court sustaining the plea of res judicata, which set up the former judgment as a bar to plaintiff’s recovery in the instant ease. -Judgment reversed.