Jennings v. Davis Et Al., 92 Ga. App. 265, 88 S.E.2d 544 (1955)

Status: DECIDED

Docket Number: 35692

Parts: Motion to set aside judgment. Before Judge Whit...

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J. Corbett Peek, Jr., Hoke Smith, Geo. T. Cason, Robert K. Broome, Durwood Pye, contra.Thomas T. Purdom, Grant, Wiggins, Grizzard & Smith, for plaintiff in error.

1. (a) Verdict and judgment rendered in a case where the officer serving a copy of the petition and process failed to show on the copy the date of service on the defendant by dating and signing the copy, in the absence of waiver, was void under Code (Ann. Supp.) 81-202 prior to the 1953 amendment thereto (Ga. L. 1953, Nov.-Dec. Sess., pp. 440, 451). During the effectiveness of this Code section between amendments (1946-1953), dating and signing the copy of the process served on the defendant by the officer serving the same was mandatory and jurisdictional.

(b) However, the invalidity of such a judgment does not appear on the face of the record where a proper entity of service, complete and regular on its face, is made on the original process filed in the office of the clerk. The establishment of its invalidity, therefore, becomes a question of fact which, under the provisions of Code 81-214 can be raised only by a traverse to the return of the officer; and until this is done, such a judgment is not void under the definition of void judgments contained in Code 110-701.

2. (a) Under the provisions of Code 81-214, the entry of the serving officer may be traversed at the first term after notice of such entry had by him and before pleading to the merits; and under the authority of Webb v. Armour Fertilizer Works, 87 Ga. App. 627 (74 S. E. 2d 746), this court held: "A verdict and judgment rendered in a case where the officer seizing a copy of the petition and process failed to show on the copy the date of the service on the defendant by dating and signing the copy, in the absence of waiver, is void, and the court erred in not setting aside the judgment," and that the requirements of Code 81-202 are "mandatory and jurisdictional." This case was followed in Jones v. Roberts Marble Co., 96 Ga. App. 830 (84 S. E. 2d 469). The effect of these holdings is, therefore, that, where it is properly made to appear that the copy process left with the defendant in a civil action is not dated or signed by the officer serving the same, there is no service and the judgment in the case, if judgment has been entered up, is a nullity. In one of these cases the return of service was traversed; in the other it was not. Neither case dealt with the necessity for, or adequacy of the traverse, and the question was not raised before this court; in consequence, insofar as method is concerned these cases constitute adjudications only as to the effect of service, and are at most only physical precedents insofar as the question is concerned of how lack of service may be raised.

Code 110-701 provides as follows: "A void judgment may be attacked in any court by any person. In all other cases judgments may not be impeached collaterally, but must be set aside by the court rendering them." It was early held that while, at common law, a return of service of a sheriff was conclusive and could not be attacked at all, this rule was modified in Georgia by statute (Code 81-214), which permits the return to be traversed, but only by making the sheriff a party, and only in the court in which the judgment was rendered. It follows, therefore, that once it becomes established that the service is in fact deficient in the manner here alleged the judgment is void, but, until such facts have been established, the judgment is not void in the sense and under the definition of void judgments contained in Code 110-701, supra.

2. It is therefore necessary to determine how it may be established that the return of service of the sheriff, properly of record in the office of the clerk of the superior court, and in every way complete and regular on its face, may be attacked so as to prove that the judgment is in fact void for lack of service. As to this only one method is set out in Code 81-214, as follows: "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 the merits; but this shall not deprive the defendant of his right of action against the sheriff for a false return." See also Crane v. Stratton, 185 Ga. 234 (194 S. E. 182); Georgia Ry. & Power Co. v. Davis, 14

268 JENNINGS v. DAVIS. 92 Ga.

Ga. App. 790 (82 S. E. 387); Cochran v. Whitworth, 21 Ga. App. 406 (94 S. E. 609). In the absence of a proper traverse, the judgment is good, notwithstanding it is undisputed that the defendant was in fact not served at all (Winecoff v. Weeden, 142 Ga. 552, 82 S. E. 1057), or was served only by publication in a case necessitating personal service (Southern States Phosphate &c. Co. v. Clark, 149 Ga. 647, 101 S. E. 536), or in any of the myriad other ways wherein defects of service, properly shown, would void the judgment.

3. On a motion to dismiss the petition to set aside the judgment, the motion must show every fact required under the provisions of Code 81-214 to be good in law. One requirement is that the pleading must affirmatively allege that the traverse was made at the first term after notice of the entry of service. Knight v. Jones, 63 Ga. 481; Evans v. Smith, 101 Ga. 86 (28 S. E. 617); Rawlings v. Brown, 15 Ga. App. 162 (2) (82 S. E. 803); Dugas v. Southern Realty Co., 44 Ga. App. 355 (161 S. E. 653). The last-cited case also holds that, as to allegations of notice of the return of service, the pleadings must be construed most strongly against the pleader. The motion here, while failing to state whether or not the plaintiff in error had notice of the entry of service, or even whether or not there is an entry of service, prays that "the return of any sheriff or deputy sheriff showing that service in this case had been perfected as required by law on movant be declared void and set aside." The plaintiff in error contends that the motion to set aside should be construed to mean, not only that she did not have notice of the entry of service prior to filing the traverse incorporated therein, but that she did not have notice even at the time of filing the same. This contention was, in Webb v. Armour Fertilizer Works, 21 Ga. App. 409, 410 (94 S. E. 610), itself treated as a fatal defect, the court holding, "It does not seem to have been contemplated that prior to such notice the defendant might file a provisional or conditional denial to a possibly existent return not alleged to exist in fact." In any event, construing the motion against the pleader (which is mandatory under Dugas v. Southern Realty Co., supra), it must affirmatively appear that the traverse was filed at the first term after notice of such entry of service. This essential allegation being absent, it must be presumed, on a motion to dismiss in the nature of a general demurrer, that the traverse was not so filed, and it was therefore proper for the trial court to dismiss the same.

This case was considered by the whole court as provided by the act approved March 8, 1945 (Ga. L. 1945, p. 232).

1955