Hartsfield v. Morris

15 S.E. 363, 89 Ga. 254

Opinion

Judgment reversed.

When the illegality came on for hearing plaintiff moved to dismiss it, on the ground that it sought to go behind the judgment, and that the matter set up therein and intended to invalidate the execution, if true, should have been set up by plea in bar of the judgment, and that it appearing that defendants were each' personally served with the original summons and copy account, and had failed to appear and plead or answer, they could not after judgment be heard to interpose a defence that might have been set up in bar of the judgment. This motion was overruled. Affiants then offered to prove, by their oral testimony, that they were not residents of Atlanta nor of the 1026th district G-. M. at the time the summons and copy account were served on them, but were residents .of the 1379th district G-. M., DeKalb county, and that the judgment was therefore void for want of jurisdiction. To the introduction of this evidence plaintiff objected, on the ground that the record showed personal service, and therefore the court had jurisdiction over the persons of defendants, and on the ground that the record of the court could not be impeached by oral evidence, and if the court did not originally have jurisdiction over the persons of defendants, their failure to appear and plead to the jurisdiction, after having been personally served, was a waiver of the question of jurisdiction. The objection was overruled. Morris & Murphy then both testified as indicated above, and plaintiff again moved to dismiss the affidavit of illegality, which motion was overruled and the illegality sustained. Plaintiff took the case by certiorari to the superior court, assigning as error the rulings of the court as stated. The certiorari was overruled, and plaintiff excepted.

W. W. Haden, for plaintiff’. C. S. Winn, contra.