Chastain v. Alford

67 Ga. App. 316

• Court: Court of Appeals of Georgia
• Decided: May 6, 1942
• Docket: 29039
• Status: Published

Opinion

Felton, J.

(After stating the foregoing facts.)

It was not error for the court to permit the plaintiff to amend the execution so that it would conform to the verdict. If tbe judgment and execution were on their faces against the defendant in personam, to such an extent they were void, because the defendant was not served with a copy of the declaration and did nothing amounting to an appearance or waiver. The fact that the judgment and execution were void in so far as they sought to operate in personam did not affect them in so far as they operated in rem. Harvard v. Davis, 145 Ga. 580 (89 S. E. 740); Hirsch v. Northwestern Mutual Life Insurance Co., 191 Ga. 524 (13 S. E. 2d, 165). The defendant was not harmed by such an amendment to the execution.

Under the answer to the question certified to the Supreme Court in this case, Chastain v. Alford, 193 Ga. 551 (19 S. E. 2d, 721), the sheriff was a necessary party, and it was therefore not error for the court to make the rulings complained of in the absence of the making of such officer a party to the proceeding.

Judgment affirmed.

Stephens, P. J., and Sutton, J., concur.