Collins v. Kennedy

Court of Appeals of Georgia

Collins v. Kennedy

146 S.E. 502, 39 Ga. App. 205, 1929 Ga. App. LEXIS 249

CourtCourt of Appeals of Georgia

DecidedJanuary 22, 1929

Docket18983

StatusPublished

Cited by1 cases

This text of 146 S.E. 502 (Collins v. Kennedy) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Collins v. Kennedy, 146 S.E. 502, 39 Ga. App. 205, 1929 Ga. App. LEXIS 249 (Ga. Ct. App. 1929).

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Opinion

Bell, J.

1. In a suit in a justice’s court, service made after the expiration of the term to which the suit is returnable amounts to no service whatever, and is void; and in such a case no judgment can legally be rendered against the defendant where service is not waived. Western & Atlantic R. Co. v. Pitts, 79 Ga. 532 (2) (4 S. E. 921); Peck v. LaRoche, 86 Ga. 314 (12 S. E. 638) ; Civil Code (1910), § 5570.

2. It is unnecessary to traverse an entry of service which shows upon its face that the service was void. Hence, where a constable’s return affirmatively disclosed that the attempted service was not made until after the expiration of the term to which the suit was made returnable, an affidavit of illegality attacking the judgment upon that ground should not have been dismissed because the constable had not been made a party to a traverse of such entry or return of service. Since the traverse as filed was unnecessary, it was immaterial that the constable was not made a party thereto. Keaton v. Moore, 59 Ga. 553; Strauss v. Owens, 6 Ga. App. 415 (2) (65 S. E. 161) ; Caldwell v. Alexander Seed Co., 17 Ga. App. 571 (87 S. E. 843).

Judgment reversed.

Jenkins, P. J., and Stephens, J., concur.

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Bell, J.

1. In a suit in a justice’s court, service made after the expiration of the term to which the suit is returnable amounts to no service whatever, and is void; and in such a case no judgment can legally be rendered against the defendant where service is not waived. Western & Atlantic R. Co. v. Pitts, 79 Ga. 532 (2) (4 S. E. 921); Peck v. LaRoche, 86 Ga. 314 (12 S. E. 638) ; Civil Code (1910), § 5570.

2. It is unnecessary to traverse an entry of service which shows upon its face that the service was void. Hence, where a constable’s return affirmatively disclosed that the attempted service was not made until after the expiration of the term to which the suit was made returnable, an affidavit of illegality attacking the judgment upon that ground should not have been dismissed because the constable had not been made a party to a traverse of such entry or return of service. Since the traverse as filed was unnecessary, it was immaterial that the constable was not made a party thereto. Keaton v. Moore, 59 Ga. 553; Strauss v. Owens, 6 Ga. App. 415 (2) (65 S. E. 161) ; Caldwell v. Alexander Seed Co., 17 Ga. App. 571 (87 S. E. 843).

Judgment reversed.

Jenkins, P. J., and Stephens, J., concur.

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Bluebook (online)

146 S.E. 502, 39 Ga. App. 205, 1929 Ga. App. LEXIS 249, Counsel Stack Legal Research, https://law.counselstack.com/opinion/collins-v-kennedy-gactapp-1929.

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