Gornto v. City of Brunswick

Court of Appeals of Georgia

Gornto v. City of Brunswick

168 S.E.2d 323, 119 Ga. App. 673, 1969 Ga. App. LEXIS 1208

CourtCourt of Appeals of Georgia

DecidedMay 13, 1969

Docket44388

StatusPublished

Cited by4 cases

This text of 168 S.E.2d 323 (Gornto v. City of Brunswick) 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.

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Gornto v. City of Brunswick, 168 S.E.2d 323, 119 Ga. App. 673, 1969 Ga. App. LEXIS 1208 (Ga. Ct. App. 1969).

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Opinion

Felton, Chief Judge.

1. The Supreme Court, in transferring this case to this court, held that “[t]he constitutional questions made in the petition for writ of certiorari were not ruled upon by the trial court, and the sole question for review on this appeal is the dismissal of the petition for certiorari because of failure of service.” (Emphasis supplied.) Gornto v. City of Brunswick, 225 Ga. 128 (166 SE2d 349).

2. A statute providing for service should be construed to require personal service, as at common law, unless the contrary intent plainly appears or unless some other mode has been established by long and recognized practice to the contrary. Robinson v. Bryson & Sons, 45 Ga. App. 440, 443 (165 SE 158), and cit. Although Code § 19-210 (Ga. L. 1855-56, p. 234; as last amended by Ga. L. 1961, pp. 190, 191) provides for service of certiorari proceedings “in person or by mail” on the opposite party or his counsel or other legal representative, it requires service on the respondent “by the sheriff or his deputy, or by the petitioner or his attorney,” which is construed to mean personal service. No other mode of service in such cases has been established “by long and recognized practice.” Where the law provides for personal service and there is no personal service, there is no service at all (Hobby v. Bunch, 83 Ga. 1 (5) (10 SE 113, 20 ASR 301)), and “[w]here there is no service at all there is no suit.” Toole v. Davenport &. Smith, 63 Ga. 160 (2). Accordingly, where the plaintiff in certiorari to the superior court served the respondent Recorder of the City of Brunswick with the petition for certiorari by mail, rather than personally as required by Code Ann. § 19-210, and there was no waiver or acknowledgment of service, the court was without jurisdiction and did not err in its judgment dismissing the certiorari proceedings.

3. Even if the service on the recorder was valid, however, the judgment was correct for the additional reason that there was [674]*674no certification of the record of the trial from the recorder’s court to the superior court. Hendricks v. State, 70 Ga. App. 805 (29 SE2d 447); Turner v. State, 85 Ga. App. 609 (70 SE2d 45), and cit. Although this defense was not raised in appellee’s motion to dismiss, it might have been raised. “The judgment of a court of competent jurisdiction is conclusive upon all questions raised or which might have been raised by way of defense to the action whether or not such questions were in fact pleaded.” Williams v. Metropolitan Home Improvement Co., 110 Ga. App. 770 (2) (140 SE2d 56), and cit.

Argued April 7, 1969 Decided May 13, 1969. Haas, Holland, Freeman, Levison & Gibert, Hugh W. Gibert, Edward L. Greenblatt, Jack S. Hutto, for appellant. William R. Killian, for appellee.

Judgment affirmed.

Pannell and Quillian, JJ., concur.

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Felton, Chief Judge.

1. The Supreme Court, in transferring this case to this court, held that “[t]he constitutional questions made in the petition for writ of certiorari were not ruled upon by the trial court, and the sole question for review on this appeal is the dismissal of the petition for certiorari because of failure of service.” (Emphasis supplied.) Gornto v. City of Brunswick, 225 Ga. 128 (166 SE2d 349).

2. A statute providing for service should be construed to require personal service, as at common law, unless the contrary intent plainly appears or unless some other mode has been established by long and recognized practice to the contrary. Robinson v. Bryson & Sons, 45 Ga. App. 440, 443 (165 SE 158), and cit. Although Code § 19-210 (Ga. L. 1855-56, p. 234; as last amended by Ga. L. 1961, pp. 190, 191) provides for service of certiorari proceedings “in person or by mail” on the opposite party or his counsel or other legal representative, it requires service on the respondent “by the sheriff or his deputy, or by the petitioner or his attorney,” which is construed to mean personal service. No other mode of service in such cases has been established “by long and recognized practice.” Where the law provides for personal service and there is no personal service, there is no service at all (Hobby v. Bunch, 83 Ga. 1 (5) (10 SE 113, 20 ASR 301)), and “[w]here there is no service at all there is no suit.” Toole v. Davenport &. Smith, 63 Ga. 160 (2). Accordingly, where the plaintiff in certiorari to the superior court served the respondent Recorder of the City of Brunswick with the petition for certiorari by mail, rather than personally as required by Code Ann. § 19-210, and there was no waiver or acknowledgment of service, the court was without jurisdiction and did not err in its judgment dismissing the certiorari proceedings.

3. Even if the service on the recorder was valid, however, the judgment was correct for the additional reason that there was [674]*674no certification of the record of the trial from the recorder’s court to the superior court. Hendricks v. State, 70 Ga. App. 805 (29 SE2d 447); Turner v. State, 85 Ga. App. 609 (70 SE2d 45), and cit. Although this defense was not raised in appellee’s motion to dismiss, it might have been raised. “The judgment of a court of competent jurisdiction is conclusive upon all questions raised or which might have been raised by way of defense to the action whether or not such questions were in fact pleaded.” Williams v. Metropolitan Home Improvement Co., 110 Ga. App. 770 (2) (140 SE2d 56), and cit.

Argued April 7, 1969 Decided May 13, 1969. Haas, Holland, Freeman, Levison & Gibert, Hugh W. Gibert, Edward L. Greenblatt, Jack S. Hutto, for appellant. William R. Killian, for appellee.

Judgment affirmed.

Pannell and Quillian, JJ., concur.

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168 S.E.2d 323, 119 Ga. App. 673, 1969 Ga. App. LEXIS 1208, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gornto-v-city-of-brunswick-gactapp-1969.

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