24 S.E.2d 213 | Ga. Ct. App. | 1943
Where suit was filed in the superior court of one county against named defendants residing therein and against other defendants residing in another county in this State, and the petition prayed that process is sue requiring the defendants to be and appear at the next term of the superior court of the county in which the suit was filed, and that second original with process thereon directed to the sheriff of the county of the residence of the non-resident defendants and his lawful deputies do issue, and that the sheriff of such county serve a copy each upon the defendants therein residing and make entry of such service on said second original and return to the county in which the suit was filed, and where the clerk of the court in which the suit was filed issued original process which was entirely regular, but in the copy process incorrectly showed the suit as pending in the superior court of the county of the non-resident defendants instead of in the superior court of the county in which the suit was filed, and such copy process was, with a copy of the petition, served upon each of the non-resident defendants in the county in which they resided, and where such copy of the petition informed the defendants of the court in which the suit was filed and the time when they should be and appear in said court, and a cause of action was set forth in the petition, the copy process was not void but merely defective and was amendable and cured by verdict. Accordingly, the affidavit of illegality filed by one of the non-resident defendants after judgment and levy of an execution upon certain property belonging to him, that he was never served with valid process, had never acknowledged service of process or waived process, and had not appeared and plead in the case, and that the purported service was void for the reason that it required him to be and appear at the superior court of his county at a stated time and the case was not pending in the superior court of that county and he had not had his day in court, was without merit, and the trial court erred in sustaining the affidavit of illegality and in dismissing the levy and setting aside the judgment as to him.
Upon the trial of the case judgment was rendered against all of the defendants except one other than Watts, and executions were thereafter issued against all defendants named in the judgment. To the levy of the execution upon certain property of Watts he filed an affidavit of illegality on the ground that he resided in Polk County at the time the suit was brought, and has since so resided, and that he was never served with valid process, had never acknowledged service of process or waived process, and had not appeared and plead in the said case; that the purported service was void for the reason that it required him to be and appear at the superior court of Polk County on the 3rd Monday in January, 1940, and the case was not pending in the superior court of that county, and he had not had his day in court. The court sustained the affidavit of illegality and dismissed the levy and set aside the judgment as to him, and the plaintiff excepted.
The process here involved was issued from a court having jurisdiction of the subject-matter of the suit and of the defendants who resided in Haralson County and had been properly served. Whether or not it acquired jurisdiction to render a valid judgment against Watts depends upon whether or not the process issued *788 against him was void or merely defective and subject to amendment and cured by verdict.
A void process is no process at all and is not amendable. Code, § 81-1313; Lowrey v. Railroad Co.,
In cases wherein was raised the question whether or not the process was void because of various objections urged it has been ruled that a copy of the petition which was served on the complaining party may aid the process. See Williams v.Buchanan,
The copy of the petition served on Watts showed to him that the suit had been filed against him in Haralson County in the superior court thereof, and that process had been prayed against him by service of second original in Polk County. It showed that the process was to require him to be and appear at the next term of that court, and he was charged in law with knowledge of the fact that the next term of that court would begin on the 3rd Monday in January, 1940, as well as knowledge that the next term of the superior court of Polk County did not begin until the 4th Monday in February, 1940. Williford v. Marshall,
If the defendant Watts had availed himself of the notice given to him by the copy of the petition, and had gone to Haralson superior court, he would have definitely ascertained upon inspection of the original process that his appearance was sought at the next term of that court, convening on the 3rd Monday in January, 1940. In these circumstances the mistake in the copy of the copy process was not cause for setting aside the judgment. See Williford v. Marshall, supra, and cit.
While we find no case in which the precise error committed in the copy process here was made, it was held in Kelly v.Fudge,
Lowrey v. Railroad Co.,
In the present case the suit was filed in the superior court of Haralson County and process issued from that court. The original process was in all respects regular, and the copy process, though defective, was, for reasons shown above, amendable, and the defect was cured by verdict.
Judgment reversed. Stephens, P. J., and Felton, J., concur.