Elliott v. Porch

Court of Appeals of Georgia

Elliott v. Porch

200 S.E. 190, 59 Ga. App. 181, 1938 Ga. App. LEXIS 468

CourtCourt of Appeals of Georgia

DecidedNovember 7, 1938

Docket27056

StatusPublished

Cited by3 cases

This text of 200 S.E. 190 (Elliott v. Porch) 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

Elliott v. Porch, 200 S.E. 190, 59 Ga. App. 181, 1938 Ga. App. LEXIS 468 (Ga. Ct. App. 1938).

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Opinions

Eelton, J.

While in a case where there has been no return of service whatever, but it is made to appear that the defendant had in fact been served, the return of service may be made, on motion, by an entry nunc pro tunc so as to authorize the court to proceed with the case (Jones v. Bibb Brick Co., 120 Ga. 321, 325, 48 S. E. 25), still, in the absence of any return of service and of a proceeding of the nature above mentioned to supply the deficiency, the court has no jurisdiction to render a valid judgment (Callaway v. Douglasville College, 99 Ga. 623, 25 S. E. 850; News Printing Co. v. Brunswick Pub. Co., 113 Ga. 160, 162, 38 S. E. 333; Jones v. Bibb Brick Co., supra; Wood v. Callaway, 119 Ga. 801 (47 S. E. 178), and where, under the facts of the record in the present case, it was admitted that there was no return of service whatever before the judgment was rendered, and an execution1 was levied on the property of the defendant, who filed an affidavit of illegality on the grounds that he was not served with process or other notice of the suit out of which the execution issued, and that he did not waive service or appear in or defend the suit; and where, after the judgment was rendered, an entry of service nunc pro tunc was made by the officer, and judgment was rendered against the affidavit of illegality, the court erred in overruling the defendant’s motion for new trial. .

Judgment reversed.

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

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Eelton, J.

While in a case where there has been no return of service whatever, but it is made to appear that the defendant had in fact been served, the return of service may be made, on motion, by an entry nunc pro tunc so as to authorize the court to proceed with the case (Jones v. Bibb Brick Co., 120 Ga. 321, 325, 48 S. E. 25), still, in the absence of any return of service and of a proceeding of the nature above mentioned to supply the deficiency, the court has no jurisdiction to render a valid judgment (Callaway v. Douglasville College, 99 Ga. 623, 25 S. E. 850; News Printing Co. v. Brunswick Pub. Co., 113 Ga. 160, 162, 38 S. E. 333; Jones v. Bibb Brick Co., supra; Wood v. Callaway, 119 Ga. 801 (47 S. E. 178), and where, under the facts of the record in the present case, it was admitted that there was no return of service whatever before the judgment was rendered, and an execution1 was levied on the property of the defendant, who filed an affidavit of illegality on the grounds that he was not served with process or other notice of the suit out of which the execution issued, and that he did not waive service or appear in or defend the suit; and where, after the judgment was rendered, an entry of service nunc pro tunc was made by the officer, and judgment was rendered against the affidavit of illegality, the court erred in overruling the defendant’s motion for new trial. .

Judgment reversed.

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

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Bluebook (online)

200 S.E. 190, 59 Ga. App. 181, 1938 Ga. App. LEXIS 468, Counsel Stack Legal Research, https://law.counselstack.com/opinion/elliott-v-porch-gactapp-1938.

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