Southern Railway Co. v. Griffler

28 Ga. App. 646 | Ga. Ct. App. | 1922

Bloodworth, J.

(After stating the foregoing facts.) In Caldwell v. Alexander Seed Co., 17 Ga. App. 571 (87 S. E. 843), this court, citing the cases of Powell v. Perry, 63 Ga. 417, Hill v. Hatcher, 53 Ga. 291, Callaway v. Harrold, 61 Ga. 112; Hillyer v. Pearson, 118 Ga. 817 (45 S. E. 701), quoted and approved as the law the syllabus in the ease of Strauss v. Owens, 6 Ga. App. 415 (65 S. E. 161): “Where a second original is issued for the purpose of serving a defendant residing in a county other than that in which the suit is pending, the process therein should be directed to the sheriff of the county in which the defendant so to be served resided. . . A sheriff of one county cannot legally serve a process directed to the sheriff of another county. If he attempts to do so, and a judgment by default is entered against one so served, the judgment is void; and in an attack upon it by illegality, on the ground of no service, there is no necessity for a traverse to the return of the officer.” Granting, but not deciding, that all the proceedings in the.case under consideration up to the issuance of the second original were regular and legal, the court, under the ruling just quoted, erred in overruling the motion of the defendant to dismiss the suit, as the only service on the defendant was by a deputy sheriff of Fulton county under a second original issued in DeKalb county (where the case was pending), the process to which was headed “ State of Georgia, County of DeKalb,” and was directed to “the sheriff or his deputy of said countjo”

Judgment reversed.

Broyles, C. J., concurs. Luke, J., dis-. qualified.