Hayes v. American Bankers Insurance

167 S.E. 731, 46 Ga. App. 552, 1933 Ga. App. LEXIS 139

• Court: Court of Appeals of Georgia
• Decided: February 1, 1933
• Docket: 22427
• Status: Published

Opinions

Jenkins, P. J.

1. This was a proceeding to set aside a verdict and judgment, and, as presented to the court below, was based solely upon an alleged unamendable defect appearing upon the face of the record, the defect being that the record failed to show service of the process upon the defendant. The defendant was an insurance company, alleged to be a foreign corporation with an agent and place of business in the county of the suit. The entry of service executed by the sheriff was in the following language: “I have this day served a copy of the within petition and process on R. N. J. Dozier, Agt., by handing the same to him in person.” The court entered judgment vacating and setting aside the verdict and judgment, and the plaintiff excepted. Held:

Decided February 1, 1933. Rehearing denied Eebruaby 22, 1933. A. L. Miller, for plaintiffs in error. A. II. Gray, contra.

1. “A judgment can not be arrested or set aside for any defect in the pleadings or record that is aided by verdict or amendable as a matter of form.” Civil Code (1910), § 5960; Winn v. Butts, 127 Ga. 385 (2) (56 S. E. 406); McDonald v. Kimball Co., 144 Ga. 105 (2) (86 S. E. 234).

2. Since the defect in the record in the instant case was an amendable one, in that the entry of the sheriff might have been amended to show that the process was served upon the defendant by delivering it to the person named therein as agent, who was the agent of the defendant in charge of its place of business in the county, if such were the fact, it was error to vacate and set aside the verdict and judgment in the plaintiff’s favor. See the exhaustive opinion of the Supreme Court in Love v. National Liberty Insurance Co., 157 Ga. 259, 260 (121 S. E. 648). In Pennsylvania Casualty Co. v. Thompson, 123 Ga. 240 (51 S. E. 314), the judgment sought to be set aside was a judgment of “in default,” and not a final judgment by default against the defendant. See the opinion of Mr. Justice Gilbert in the Love case distinguishing the Thompson case. Moreover, in the Thompson case the entry of service was in substance identical with the entry of service in the instant case, and it was held in the Thompson ease that such an entry was amendable. Under the proof submitted to the trial judge upon the hearing of the motion in the instant ease, the only question involved is whether the quoted entry of service constituted such an unamendable defect upon the face of the record as would authorize the setting aside of the judgment. No question is involved as to whether if there had in fact been no service upon the defendant, the verdict and judgment might be set aside upon a proper proceeding for that purpose; and no question is involved as to whether the defendant might go behind the judgment by affidavit of illegality if there had in fact been no service upon it.

Judgment reversed.

Stephens and Suilon, JJ., concur.