11 Ga. 20 | Ga. | 1852
By the Court.
delivering the opinion.
These principles warrant the conclusion that the wife ought to be served with process. Authority to the contrary was relied upon by Mr. Harris. The case he referred to in Barnes’ Reports was not read to the Court, nor have I been able to procure it. The dictum from Tidd, which he relied upon, states the rule dispensing with service doubtingly; it is sustained in Tidd, by reference to the case in Barnes, and to Pr. Reg. 351,’5,’6, the latter of which references is not accessible, and neither of them very reliable. The dictum in Tidd is also found in Chitty’s General Practice, sustained by the case in Barnes alone. Only one case was read from the American books, by the plaintiff in error, and that is to be found in 1 Baily S. C. R. 521. That case is not entitled to much consideration, as it barely states the judgment of the Court, without reasoning and without authority, except the elementary dictum in Tidd. Upon such authority we cannot hold that it is settled in the books, that it is not necessary to serve the wife ; and if it were, we should be constrained to say that it is badly settled ,upon principle.
Aside, however, from all authority, English or American, we think that this question is settled by our own Statute. By the Judiciary Act of 1799, all civil suits, cognizable in the Courts of Justice, shall be by petition, &c. to which petition, it is made the duty of the clerk to annex a process, which is directed to the Sheriff, requiring the defendant or defendants to be and appear at the Court to which the same is returnable; and which process the Act declares shall be served on the defendant or defendants at least, &c. &c. (Prince 420.) If the wife is a defendant to the suit, by this Act, she must be served with process; and that she is a party defendant, even with rights of defence, distinct from those of her husband, there is no doubt whatever.
The other question is, was not the -want of service waived by the wife’s appearing and answering to the merits ? We think it was. Without service, the Court had no jurisdiction over Mrs. Taylor; but when she came in, not pleading to the jurisdiction, but to the merits, she is to be held as submitting to
Upon this last ground we remand the cause.