Church v. Church

106 S.E. 114, 151 Ga. 98, 1921 Ga. LEXIS 164

• Court: Supreme Court of Georgia
• Decided: February 16, 1921
• Docket: No. 2077
• Status: Published

Opinion

Hill, J.

( After stating the foregoing facts.)

1'. The single question for decision is whether under the facts, after the lapse of more than seven terms of the court without service upon the defendants, service can be perfected, and whether it was legally done in the instant case. The Civil Code (1910), § 5570, provides that "Whenever process is not served the length of time required by law before the appearance term, such service shall be good for the next succeeding term thereafter, which shall be the appearance term.” In the case of Branch v. Mechanics Bank, 50 Ga. 413, it was held: "Where a declaration was filed and process attached against a corporation, and a regular return made by the sheriff that the defendant was not to be found, and that the president of the corporation was dead, the plaintiff is not entitled, after the lapse of five terms of the court without having taken any further action, or showing sufficient legal reason for the delay, to amend the process so as to make it returnable to the then ensuing term, and to perfect service by publication.” In delivering the opinion of the court in that case Trippe, J., said: "We are fully aware of the great liberality allowed by law, and as shown by many of the 'decisions, as to amendments both of declarations and process, and also as to perfecting service; but we do not think that any statute or decision has gone so far as to permit a plaintiff to file his petition, and, after a return of no service by the sheriff, to await the expiration of five terms without any action whatever, and then, without any legal cause shown for the laches or delay, ask to be permitted to do that which could as well have been done, and should have been done, more than two years previously.” In the instant case, so far as the record discloses, there was no effort to serve the resident defendant until after the seven terms of court had passed.

In tbe case of Brunswick Hardware Co. v. Bingham, 110 Ga. 536 (35 S. E. 772), it was held: “It is too late for tbe trial judge to pass an order to perfect service on the defendant, after the lapse of seven terms of court after the filing of the declaration.” In Cox v. Strickland, 120 Ga. 104 (7), 113 (47 S. E. 912, 1 Ann. Cas. 870), the court held: “The filing of the petition is treated as the commencement of the suit only when followed by due and legal service. If there is no process and no service, and the plaintiff is guilty of laches, the writ becomes abortive, and the court loses jurisdiction to issue process or to have service perfected.” In McLendon v. Ward-Truitt Co., 19 Ga. App. 495 (91 S. E. 1000), the above ruling is repeated and followed.

The case of Sims v. Sims, 135 Ga. 439 (69 S, E. 545), was one where process was duly issued in a case requiring personal service, but no service was made, by reason of the defendant’s absence from the State; and it was held in that case that |he judge had, the right, upon the return of the defendant to the State, to pass an order amending the process by making it returnable to the next term after the date of the order, and providing for service. In speaking for the court in that ease Fish, C. J., said that “ This court has repeatedly recognized the right of the trial judge where there was process and no sendee, but some legal reason for the want thereof, to pass an order at a subsequent term to the appearance term, amending the process and extending the time for service,” citing a number of authorities.

In the cases relied on by the plaintiff application was made to amend the process at the second term of court; and they are eases where diligence had been shown in amending the process and in perfecting service. In the instant ease such diligence has not been shown on the part of the plaintiff, but on the contrary he has been guilty of laches in awaiting until after seven terms of the court had passed before moving to perfect 'Service on the defendant. The defendants in error, on the other hand, made their timely motion to dismiss the case after 'they were served with notice of the purpose of the plaintiff to perfect service.

In view of the foregoing authorities and the facts of this case, the effort of the plaintiff to perfect service on the defendants, after seven terms of the court had elapsed without any effort to do so, was “ abortive and void.” It follows that the trial judge did not err in sustaining the motion of the defendants and in dismissing the plaintiff’s case.

Judgment affirmed.

All the Justices concur.