Denham v. Jones

23 S.E. 78, 96 Ga. 130

• Court: Supreme Court of Georgia
• Decided: April 15, 1895
• Status: Published

Opinion

Atkinson, Justice.

The official report contains the only statement as to the evidence and the record material to a clear understanding of the questions made.

A return of service entered upon a declaration is not conclusive as to the facts therein recited. It may be traversed and impeached by proof that it is untrue. It is of itself, however, evidence of a high order, and can only be set aside upon evidence which is not only clear and convincing, but the strongest of which the nature of the case will admit. It is not proper, however, in instructing the jury as to the character of the evidence required to overcome an officer’s return, to charge that as .against the return the very strongest evidence must be produced. In the case of Davant v. Carlton, 53 Ga. 491, this court held that it was error for the court to refuse to charge the jury under such an issue, that under the law it required the strongest evidence to overcome such an entry, and to charge in lieu thereof, that such entry was prima facie evidence, but, like other evidence, might be overcome. The charge there requested was equivalent to a request, that the attack upon the return should be supported by the strongest evidence of which the nature of the case would admit; and in its opinion this court ruled that before the court was authorized to set aside an official return, it must be fully satisfied that the return is false. "We think that practically states the rule as we state it now, that the evidence must not only be the strongest of which the nature of the case admits, but it must be clear and convincing as to the falsity of the return. The chai’ge complained of in this case goes further than this rule, with reference to the character of the- evidence, or the source from whence it is derived; it enjoins upon the jury that they would not be authorized to set aside the return except upon the very strongest evidence. If the evidence were clear and convincing to their minds and the strongest of which the nature of the case admits,that would be sufficient evidence, though the very strongest evidence were not produced. This error, if material, might be sufficient to require a new trial; but upon looking through the record, we find no intimation in the pleadings that the defendant had a meritorious defense which he was prevented from making; and inasmuch as the vefdict rendered is fully supported by the evidence, and the charge is clear and correct in all particulars other than as above stated, this court will not reverse the judgment of the circuit judge in refusing to grant a new trial. Judgment affirmed.