16 Ga. App. 783 | Ga. Ct. App. | 1915
Lead Opinion
The United States Motor Company obtained a judgment by default against Baughman Automobile Company, it being recited in the judgment that the defendant had been served as the law directed. On March 5, 1914, an execution which was issued upon this judgment was levied upon an automobile as the property of the defendant. Thereupon the defendant filed an affidavit of illegality, alleging that it had never been served with any process or other notice of the pendency of the suit; and at the time of the alleged service B. E. Lewis, deputy sheriff, had not qualified as deputy sheriff of the city court of Bainbridge by giving the bond required by the act establishing the court. Upon the trial, the court overruled a motion to dismiss the affidavit of illegality, and thereupon the plaintiff moved the court to allow B. E. Lewis, deputy sheriff, to amend his entry of service upon the original complaint and process, and in support of this motion offered evidence that the officer" intended to serve the corporation, Baughman Automobile Company, and not C. H. Baughman as an individual. The court refused to hear the evidence or to permit the suggested amendment. Upon proof that the person who purported to have served the process and to have made the entry thereof had not given any bond, the court directed a verdict in favor of the defendant and sustained the illegality. Two questions are raised by the record and the argument: (1) whether such recitals as those contained in the entry of service are amendable; and (2) whether the person purporting to have served the original petition and process
1. The entry of service in the present case is as follows: "Georgia, Decatur county. I have this day served C. H, Baughman, manager of Baughman Automobile Company, personally, with a copy of the within original. This May 25, 1912. B. F. Lewis, deputy sheriff.” One of the grounds of the affidavit of illegality was that the service of process was upon C. H. Baughman in his individual capacity only, and therefore that the corporation, Baughman Automobile Company, had .never been served or had its day in court. The plaintiff asked that the officer be allowed to amend the entry of service so that it would read: "I have this day served the defendant Baughman Automobile Company, a corporation, by personally serving C. H. Baughman, manager of Baughman Automobile Company, with a copy of the within writ and process by leaving the same with the said C. H. Baughman at the office and place of doing business of said corporation in said county. This May 25,1912. B. F. Lewis, deputy sheriff.” The court, after hearing testimony which supported the statements of the proposed amendment, declined to allow the entry of service to be amended. The point is controlled by the rulings of the Supreme Court in Phillips v. Bond, 132 Ga. 413 (64 S. E. 456); Pennsylvania Casualty Co. v. Thompson, 123 Ga. 240 (51 S. E. 314); National Bank of Augusta v. Southern Porcelain Mfg. Co., 55 Ga. 36; Central Railroad v. Smith, 69 Ga. 268; Mitchell v. Southwestern Railroad, 75 Ga. 398. Despite the fact that reference to an individual as being manager of a corporation has frequently been held to be mere descriptio personae, and therefore that such designation does no more than refer to him individually, it is well settled, as to an entry of service, that, "If the fact of service appears, but the return is irregular, it may be amended;” and there was proof in the present case that Baughman was not only the manager of the corporation, but its sole stockholder. In National Bank of Augusta v. Southern Porcelain Mfg. Co., supra, it was held that "Service upon the president of the company in the county where he resided ánd where the books of
2. As already stated, an entry of service by an officer qualified to serve process is generally amendable. The only variation in the rule, as pointed out by Justice Lumpkin in Phillips v. Bond, supra, is in the amendment of a return of service of summons of garnishment, where necessarily a different rule applies, since the original summons of garnishment is served upon the garnishee, and the only record evidence showing to whom the summons is directed is the entry of the officer. Necessarily, therefore, as to an entry of service
Judgment affirmed.
Rehearing
ON MOTION FOR REHEARING.
It is insisted by counsel for plaintiff in error that the service and the entry of service by the deputy sheriff in this ease should be held to be good because he could properly be considered a de facto officer. It appears, however, from the record, that the return of service does not purport to have been made by B. F. Lewis as deputy sheriff of the city court of Bainbridge. It is signed, “B. F. Lewis, deputy sheriff.” The entry as made authorized the inference that he was acting as deputy sheriff of Decatur county. A levy is not good as a levy by a de facto officer when the person making the levy does not assume to act as, or in the place of, the particular officer authorized by law to perform the particular act. Where an officer “undertakes to extend the jurisdiction of his office to the execution of process which under the law
Dissenting Opinion
dissenting. I think that the court should have allowed the officer to amend his entry of service so as to show that he had served Baughman, not in Baughman’s individual capacity, but as manager of the Baughman Automobile Co. I can not concur in the ruling stated in the second headnote. The undisputed evidence being that B. E. Lewis, the officer who made the service, had, at the time of the service, been' appointed deputy sheriff of the city court of Bainbridge (as well as deputy sheriff of the superior court of Decatur county), and that he had been serving as deputy sheriff under such appointment, and was so serving at the time of this service, in my opinion he was clearly a de facto deputy sheriff of the city court of Bainbridge (notwithstanding he had not given bond), and, accordingly, his service in this case was good. See Crawford v. Howard, 9 Ga. 314 (2); Gunby v. Welcher, 20 Ga. 336; Hinton v. Lindsay, 20 Ga. 746; Gunn v. Tackett, 67 Ga. 725, 727; Smith v. Meador, 74 Ga. 416 (58 Am. R. 438). This case is plainly distinguished from McCalla v. Verdell, 122 Ga. 801 (50 S. E. 943). In that case section 8 of the act establishing the city court of Elberton (Acts 1896, p. 289) provides that both the sheriff and the deputy sheriff of that court, before entering upon the discharge of their duties, shall give bond
The point that the deputy sheriff in this case signed his entry of service as “B. E. Lewis, deputy sheriff, of the city court of Bainbridge,” was not made in the affidavit of illegality filed in this case; if it had been, the entry of service could easily have been amended.
In my opinion, the court erred in directing a verdict sustaining the affidavit of illegality, and the judgment should be reversed.