3 Ga. App. 726 | Ga. Ct. App. | 1908
This was a scire facias to revive a judgment. The judgment was rendered in the county court of Greene county in 1897, and is as follows: “Judgment is this day rendered by the court in favor of said plaintiffs against L. Crutchfield & Co. and Levi Crutchfield and George Weaver for the sum of $100 'principal, $2.75 interest, and $3 for cost. Given under my official signature, this November 22, 1897. W. M. Weaver, County Judge.” Service of the scire facias was made on Weaver, and he thereupon came into court and pleaded, (1) that he was “at no time a member of the firm of L. Crutchfield & Co. and at no time was he ever indebted to plaintiffs in fi. fa.;” (2) that he “was never served with a .copy of the suit on which the original judgment was founded, nor did he waive service, nor did he appear and plead, nor did he know of the existence of such suit;” and (3) that at the time said judgment was rendered he was only 17 years of age. It appears, from the evidence, that the judge of the county court who presided in 1897 is dead, as are also the bailiff and all the other ministerial officers of the court; and that all the ’papers in
1. The defendant could not, in a scire facias to revive a judgment, raise the point that he' was not a member of the partnership against which the original judgment had been rendered. This was an attempt to inquire into the merits of the judgment. "On the general principle of res ad judicata (which applies equally to proceedings by scire facias as to any other action or suit), and on the further ground that this method of reviving a judgment is merely a supplementary step in the original action, the defendant is absolutely precluded from going behind the judgment and offering in defense to the scire facias any matter which existed before the rendition of the original judgment and might have been presented in the former proceeding. In no case and under no circumstances can the merits of the original judgment be inquired into by the defendant on a writ to revive it.” 1 Black on Judgments (2d ed.), §493; Foster on Scire Facias, *27; Civil Code, §5380; Wiley v. Kelsey, 9 Ga. 117; Camp v. Baker, 40 Ga. 149. Therefore, where he was! actually in court and failed to plead to the jurisdiction of the court in due time, he can not offer this'
2. The defense that he was not served with process in the original suit, did not waive service, and did not appear and plead therein, if true, would make the judgment an absolute nullity as to him individually. “Tt is an unquestioned principle of natural justice that a man should have notice of any legal proceeding that may be taken against him, and a full and fair opportunity to make His defense. The law never acts by stealth; it condemns no one unheard. . . A personal judgment rendered against a defendant without notice to him or an appearance by him is without jurisdiction, and is utterly and entirely void.” 1 Black, Judg. §220; Pennoyer v. Neff, 95 U. S. 714 (24 L. ed. 565); Bloom v. Burdick, 1 Hill (N. Y.) 130 (37 Am. Dec. 305). In proving that he was not served, the defendant is not seeking to raise a defense which he could have raised in the original suit, as was held in Bell v. Williams, 4 Sneed (Tenn.), 196; because if he was not served and did not appear, he was not in court and had no opportunity to make any defense whatsoever. The Tennessee court suggests that if he has any remedy in such a case, it is in equity. But there is little to support a doctrine that would drive the defendant into equity to be relieved against mere ink and paper which has not the slightest substance of legal efficacy. Such a judgment being absolutely void, it may be attacked and its invalidity asserted