Allen v. Mutual Loan & Banking Co.

12 S.E. 265, 86 Ga. 74, 1890 Ga. LEXIS 183

• Court: Supreme Court of Georgia
• Decided: October 17, 1890
• Status: Published

Opinion

Blandford, Justice.

The defendant in error sued the plaintiff* in error, and filed its declaration with the clerk of the superior court. The case was entered on the docket. Defendant in error, through its attorney, inquired after the papers and was informed by the clerk that they were lost or mislaid, but that he would get them for him. At the second term of the court, the defendant in error moved to establish the lost declaration and the process attached thereto; and on the trial, plaintiff’s attorney, having testified as to his inquiry regarding the papers in the case and his being assured by the clerk that.he would get them for him, stated that he did not know they were lost. Defendant in error also showed by the clerk that it was his habit, directly after, receiving a declaration, to annex process thereto; and while he could not say positively he had done so in this case, he thought he had. The court allowed a copy to be established in lieu of the original declaration and process, and this the plaintiff in error, Allen, says was error. "We see no objection to the court’s having ordered the declaration and process to be establishe'd upon the evidence submitted.

The next question made is, that at that term of the court plaintiff moved for an order giving further time, until the next term of the court, within which to perfect service of the declaration and process on the defendant, now the plaintiff in error. It was shown by the evidence of plaintiff’s attorney that he inquired of the sheriff, who informed him. that the declaration had been served upon tbe plaintiff in error; that be was misled by this information given him by the sheriff, or he would have moved for this order at the first term of the court after the declaration was filed. The court allowed the order asked for, and Allen, the defendant in the court below, excepted. He says this was error. "While we think the court could have refused the order and dismissed the case, yet we think he had a right to hear the testimony produced by the plaintiff in the court below; and if he was satisfied that the plaintiff had used due diligence to ascertain whether the declaration and process had been served, he then had a right to order the service to be perfected as was done. The granting of such a motion is largely in the discretion of the court. And while this court might not interfere with, the court below whether it directed that further time should be given or refused, still we do not think it was error to have allowed the order asked for.

Judgment affirmed.