Dasher v. Dasher

47 Ga. 320

• Court: Supreme Court of Georgia
• Decided: July 15, 1872
• Status: Published

Opinion

Montgomery, Judge.

This was a rule nisi by J. T. Dasher against Virgil F. Dasher, issued at the December term, 1871, of Lowndes Superior Court, requiring said Virgil T. Dasher to show cause why a judgment obtained by him against J. T. Dasher at the preceding term of the Court should not be set aside as void for want of service. By agreement of parties the case was submitted to Judge without jury.

The evidence showed conclusively that the defendant in the action in which the judgment was obtained, never had been served, nor had he by himself or agent acknowledged service. Indeed, he was entirely ignorant that the cause was pending, until after judgment was entered against him. The usual entry of service by leaving the writ at defendant’s residence, was, however, on the declaration.

The Judge refused to set aside the judgment “ upon the ground that the sheriff’s return shows that service had been perfected in said suit, and that said judgment was not void for want of service.” The evidence showed the writ to have been left at the house of defendant’s father, instead of his own, and that he had never heard of it until after the judgment was rendered, and then moved at the very next term to have it vacated. The case is fully within the provisions of section 3264 of the Code, and the judgment of the Court below must, therefore, be reversed.