19 Ga. App. 376 | Ga. Ct. App. | 1917
The act creating the Dublin judicial circuit (Acts of 1911, p. 81) provides that superior courts shall be held in the county of Laurens on the “4th Mondays in January, two weeks; 4th Mondays in April, two weeks; 4th Mondays in July, two
Counsel for the plaintiff moved to dismiss the affidavit of illegality, upon the ground that while the entry of the officer maldng the return of service had been traversed, neither the officer making the return nor the sheriff under whom he was acting had been made a party to the case. The court overruled this motion and refused to strike the affidavit of illegality upon this ground, and to this ruling the plaintiff excepted. The court then rendered
1. Where service of process is effected or a levy is made by one who assumes to act as an officer having authority to make such service or levy, the service or levy is good even though the appointment or qualification of the person purporting to act as such officer be irregular; since his acts would be those of a de facto officer. Twiggs v. Hardwick, 61 Ga. 272; Hinton v. Lindsay, 20 Ga. 746 (3, 4); Gunn v. Tackett, 67 Ga. 725; Oliver v. Warren, 124 Ga. 549, 550 (53 S. E. 100, 4 L. R. A. (N. S.) 1020, 110 Am. St. E. 188). It is quite different, of course, where the person purporting to act as an officer does not assume to act as the particular officer having authority in the particular case. Hartshorn v. Bank of Gough, 15 Ga. App. 167, 171 (82 S. E. 805). The return of one purporting to act as an officer having authority to-execute the particular process or do the particular thing stated in the return is prima facie presumed to have been made by authority, and when the record shows a valid return of service and it becomes necessary to resort to extrinsic testimony to show that there has been no service, or that the service was for any reason invalid, the return must be duly traversed; and where made by a deputy sheriff, "both the sheriff and the deputy sheriff must be made parties to the traverse.” Bell v. N. O. &c. R. Co., 2 Ga. App. 812, 816 (59 S. E. 102). "The rule that the officer making the return is a necessary party to the traverse has been announced in many cases by our Supreme Court, and also in several cases by this court. In O’Bryan v. Calhoun, 68 Ga. 215, it is said that where there is a return by the officer, ‘if1 the defendant intends to attack the verity of such return, he must take steps by filing a traverse
In this case it does not appear from the record that either the sheriff or his deputy was in any way notified of the pendency of the traverse to the return of service. It is true that in the agreed statement of facts incorporated in the bill of exceptions it is recited that J. W. Couey, who signed the return as a deputy sheriff, was not in fact such a deputy, but was a bailiff appointed during the term of the court, and specially directed by the sheriff to serve this particular paper on the defendant Mrs. Essie Clark; but no statement of facts agreed to by the plaintiff and the defendant in the lower court could possibly affect the rights or liabilities of' the sheriff or his deputy, and consequently the recitals in the bill of exceptions could not supply the omission to make the sheriff and his deputy parties to the traverse. Section 5566 of the Civil Code provides that “The entry of the sheriff or any officer of the court, or his deputy, may be traversed by the defendant at the first term after notice of such entry is had by him, and before pleading to
■ It is therefore unnecessary, in order to determine the question raised by the main bill of exceptions, that we decide whether or not a bailiff appointed to serve the court during its session and sworn to take all'juries committed to his charge during the term to the jury-room or some other private and convenient place, etc., and to “discharge all other duties which may devolve upon” him as a bailiff, to the best of his skill and knowledge (Civil Code,
. 2. Section 3276 of the Civil Code of 1910, which provides how mortgages may be foreclosed on realty, says that the person applying and entitled to foreclose sueh a mortgage “shall, by himself or his attorney, petition to the superior court of the county wherein the mortgaged property may be, which petition shall contain a statement of the case, the amount of the petitioner’s demand, and shall grant a rule directing the principal, interest, and costs to be a description of the property mortgaged; whereupon the court paid into court on or before the first day of the next term immediately succeeding the one at which such rule is granted; which rule shall be published once a month for four months, or served on the mortgagor, or his special agent or attorney, at least three months previous to the time at which the money is directed to be paid into court, as aforesaid.” It is obvious, where quarterly terms of the superior court are held, that when a rule is applied for and obtained during one term of the e<Jiirt, “directing the principal, interest, and costs to be paid into court on or before the first day of the next term immediately succeeding the one at which such rule is granted,” the rule could not be published in time for the next succeeding term, and generally it would be impossible to serve the mortgagor or his attorney “at least three months previous to the time [on or before the first day of the next term] at
Quarterly terms being provided for in the act creating the Dublin judicial circuit (Acts of 1911, p. 81), it is apparent that if section 3376 be construed in connection therewith, in accordance with the contention of counsel for the defendant, who is the plaintiff in error in the cross-bill of exceptions, the effect would be to repeal section 3376 of the Civil Code, so far as the statutory foreclosure of mortgages on realty in the county of Laurens was originally authorized thereunder, since it would be absolutely impossible ever to put into effect the provision of section 3376 authorizing service by publication for four months, and it would be practically impossible (except in very rare instances) to effect service of process issued under the provisions of that section three months before the first day of the next term immediately succeeding the term at which the rule nisi was granted. In the act of 1911 which created the Dublin judicial circuit there is nothing that even tends to suggest an intention on the part of the legislature to repeal any of the provisions of section 3376; and without considering whether such a general law as is embodied in that section coukl properly be repealed by an act having a local application only, it may be said that “Repeals by implication . . are not favored; and it is only in so far as a statute is clearly repugnant to a former statute, and so irreconcilably inconsistent with it that the two can not stand together, or is manifestly intended to cover the subject-matter of the former and operate as a substitute for it, that such a repeal will be held to result. The intention to repeal must be plain and unmistakable.” Johnson v. Southern Mutual B. & L. Asso., 97 Ga. 633, 633, 634 (35 S. E. 358). According to a familiar rule, where-two constructions are possible, the courts will generally so construe an act of the legislature as to give it a reasonable intendment. There was obviously no purpose on the part of the legislature to deny to the superior court of Laurens county the power to foreclose mortgages o,n realty by the statutory proceedings authorized or allowable in counties where the terms of the
In Vaughn v. Farmers & Merchants Bank, 145 Ga. 338 (89 S. E. 195), it was held that “Where a rule nisi upon a petition to foreclose a mortgage upon realty was issued at the January term, 1915, of the superior court, and more than three months before the next term of the court, which convened on April 12, 1915, and at the latter term the mortgagor was required to pay the money into court, and personal service of the rule nisi was effected prior to the term at which the payment was required to be made, but too late to be due service to that term, it would go over and become returnable to the next succeeding term.” See also Ray v. Atlanta Banking Co., 110 Ga. 305 (35 S. E. 117). Since in that case the rule nisi was issued more than three months before the first day of the next term of the court, it is plain that if personal service had been promptly effected more than three months before the term at which the mortgagor was required to pay the money into court, the rule would have been returnable to the said next succeeding term, and a rule absolute could properly have been granted. The court held, however, that as it appeared that service was not effected more than three months before the next succeeding term after issuance of the rule nisi, though personal service was in fact had before that term, the case went over and became returnable to the
We hold, therefore, that where the next term immediately succeeding the term of the superior court at which a rule nisi to foreclose a mortgage on realty is applied for will not regularly begin on a day more than three months from the date when the rule nisi is obtained, it is proper, in counties where quarterly sessions of the superior courts are provided for by law, that the rule should be made returnable to the second term thereafter, which in contemplation of the statute must be held to be “the next term immediately succeeding the one at which such rule is granted,” as being the “next” term at which it is legally possible to require the defendant to appear and answer. Certainly it is the first term at which the defendant could be required to answer in response to notice served upon him by publication four months, or personally at least three months, in advance of the term. Where, on the other hand, the first day of the next term immediately succeeding the term at which the rule nisi is granted is more than three months later than the day-on which such rule is granted, the rule should
Judgment reversed on the main bill of exceptions, and affirmed on the cross-bill.