79 Ga. 532 | Ga. | 1887
In January, 1886, Pitts recovered a judgment m a justice’s court against the Western & Atlantic Railroad Company for $50. The company did not appeal, but sued out a certiorari, complaining that the judgment was contrary to law; that the court refused to dismiss the case, on motion made, at the first term and renewed at the second term, for want of service; that the court continued the case and granted an order to perfect service; that the judgment was rendered on a day. other than the regular court day; and that it was rendered when counsel of the company was absent attending another justice’s court, with leave of absence as he thought. At the hearing of the certiorari the superior court dismissed the same, and this is the error now complained of..
The officer’s return did not show sufficient service, (Hayden vs. Atlanta Savings Bank, 66 Ga. 150,) and in strict law, the court ought to have granted the motion to dismiss if the officer could not truthfully, or would not, amend his return. The return was amendable so as to include all the facts of a good service, if such facts existed, such as that Parrott was agent of the defendant company, and that the copy was left at his office, being the place of transacting tho usual and ordinary public business of the corporation. (Code, §3369.) There is ample authority for amending official returns, even those of constables. Code, §3497; Freeman vs. Carhart, 17 Ga. 349; Telford vs. Coggins, 76 Ga. 683; Marsh vs. Phillips, 77 Ga. 436.
As the constable did not amend his return after the point was made in d ue time on its sufficiency, the presumption is that the facts did not warrant any amendment that would better it. And this presumption is strengthened by the course pursued at the following term by the plaintiff’s counsel, who, instead of standing upon the service already effected, moved for a continuance in order to perfect ser
In our opinion, the court had no power to order service perfected, or to grant a continuance for that purpose. By the code, §4154, the case stood for trial at the time designated in the summons; and if there had not been due service prior to that time, there never could be any; the summons fell for lack of service to uphold it. Justice courts are of limited jurisdiction, and must conform in their proceedings to the conditions prescribed to them by statute. Their proceedings are intended to be summary, and of short duration. The trial is to be had at the first term after the summons issues, if had at all, unless the case is legally continued; and continuances are limited to one for either party, unless for providential cause. Code, §4155. Continuance to perfect service is unknown to the law applicable to these courts. Service which has to be perfected is no service. These courts cannot put a patch on defective service and mend it, though they may allow their officers to patch and perfect defective returns. A summons to appear at November term could not call upon the defendant to appear at a subsequent term, without altering it so as to express the latter in place of the former; and to do that would be to remodel the summons and make it virtually a new process. Why not issue a new one at once, and leave the old to perish ? The summons is the suit, and to make a new return day for it, and alter it accordingly, and then serve, would be, in all essential respects, to begin a new action. In the superior courts, there is something to stand between the process and the antecedent nothing, to-wit, the declaration; and the process may be amended by substituting one term for another. When the declaration is filed, suit is commenced, (code,
Judgment reversed.