Hays v. Fourth National Bank

Court of Appeals of Georgia

Hays v. Fourth National Bank

87 S.E. 147, 17 Ga. App. 409, 1915 Ga. App. LEXIS 460

CourtCourt of Appeals of Georgia

DecidedDecember 9, 1915

Docket6251

StatusPublished

Cited by1 cases

This text of 87 S.E. 147 (Hays v. Fourth National Bank) 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

Hays v. Fourth National Bank, 87 S.E. 147, 17 Ga. App. 409, 1915 Ga. App. LEXIS 460 (Ga. Ct. App. 1915).

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Opinion

Russell, C. J.

An affidavit of illegality upon the ground that notice of the suit upon which the execution was based was not legally served is not sustained by introducing in evidence the following entry of service, upon the docket of the justice who tried the case, properly dated and signed: “Served a copy of the within summons and note on the defendant by leaving at his most notorious place of abode.” The provisions of section 4717 of the Civil Code designate the manner in which service of a suit shall be made, but do not prescribe a form for the entry of the return thereof. The fact that in the present case the further descriptive word “usual,” as used in section 4717, was omitted in making the entry does not void the service or the entry. The most notorious place of abode could be none other than the usual place of abode. See, generally, Jones v. Tarver, 19 Ga. 283; Wood v. Callaway, 119 Ga. 802 (47 S. E. 178); Griffing v. Carlwell, 1 Rob. (La.) 16; Bruce v. Cloutman, 45 N. H. 37 (84 Am. D. 111); State v. Toland, 36 S. C. 515 (15 S. E. 599); 29 Cyc. 128; 39 Cyc. 873. In the absence of any evidence whatever that the return of service as entered did not speak the truth and that the defendant in fact was never served as therein stated, no judgment other than that rendered upon the affidavit of illegality would have been proper; and the judge of the superior court did not err in refusing to sanction the petition for certiorari. Judgment affirmed.

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Russell, C. J.

An affidavit of illegality upon the ground that notice of the suit upon which the execution was based was not legally served is not sustained by introducing in evidence the following entry of service, upon the docket of the justice who tried the case, properly dated and signed: “Served a copy of the within summons and note on the defendant by leaving at his most notorious place of abode.” The provisions of section 4717 of the Civil Code designate the manner in which service of a suit shall be made, but do not prescribe a form for the entry of the return thereof. The fact that in the present case the further descriptive word “usual,” as used in section 4717, was omitted in making the entry does not void the service or the entry. The most notorious place of abode could be none other than the usual place of abode. See, generally, Jones v. Tarver, 19 Ga. 283; Wood v. Callaway, 119 Ga. 802 (47 S. E. 178); Griffing v. Carlwell, 1 Rob. (La.) 16; Bruce v. Cloutman, 45 N. H. 37 (84 Am. D. 111); State v. Toland, 36 S. C. 515 (15 S. E. 599); 29 Cyc. 128; 39 Cyc. 873. In the absence of any evidence whatever that the return of service as entered did not speak the truth and that the defendant in fact was never served as therein stated, no judgment other than that rendered upon the affidavit of illegality would have been proper; and the judge of the superior court did not err in refusing to sanction the petition for certiorari. Judgment affirmed.

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87 S.E. 147, 17 Ga. App. 409, 1915 Ga. App. LEXIS 460, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hays-v-fourth-national-bank-gactapp-1915.

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