Keys v. Keys

Court of Appeals of Georgia

Keys v. Keys

72 S.E.2d 810, 86 Ga. App. 815, 1952 Ga. App. LEXIS 1071

CourtCourt of Appeals of Georgia

DecidedSeptember 26, 1952

Docket34180

StatusPublished

Cited by4 cases

This text of 72 S.E.2d 810 (Keys v. Keys) 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

Keys v. Keys, 72 S.E.2d 810, 86 Ga. App. 815, 1952 Ga. App. LEXIS 1071 (Ga. Ct. App. 1952).

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Opinion

Worrill, J.

“To authorize a judgment against a person who has not appeared and answered or otherwise submitted himself to the jurisdiction of the court, there must be not only service upon such person but also a legal return of such service. Until service has been made and a legal return entered, the court is without jurisdiction to enter judgment against a defendant who has not appeared. Wood v. Callaway, 119 Ga. 801, 803, and cases cited.” Albright-Pryor Co. v. Pacific Selling Co., 126 Ga. 498 (1), 500 (55 S. E. 251, 115 Am. St. R. 108) ; Elliott v. Porch, 59 Ga. App. 181 (200 S. E. 190). See also Callaway v. Douglasville College, 99 Ga. 623 (1) (25 S. E. 850); News Printing Co. v. Brunswick Publishing Co., 113 Ga. 160 (38 S. E. 333); Jones v. Bibb Brick Co., 120 Ga. 321 (1, 2), 324 (48 S. E. 25). Under the foregoing authorities a verdict in favor of the affidavit of illegality was demanded by the evidence in this case, and the superior court erred in overruling the certiorari and in entering judgment against the plaintiS in certiorari.

Judgment reversed.

Sutton, C.J., and Felton, J., concur.

*816 The illegality was tried by the justice of the peace and a jury. Hugh Prater, a deputy sheriff of Gordon County, testified that he served the defendant with the papers in this case. The defendant in execution introduced in evidence copies of the original papers showing no entry of service thereon and the justice of the peace docket with no entry of service shown thereon. The defendant in execution testified that she had not been served with the summons in this case.

The jury returned a verdict against the illegality and the defendant in execution petitioned the superior court for a writ of certiorari, which was sanctioned. The justice of the peace in his response admitted that there was no entry of service on the docket or return of service on the original summons. The judge of the superior court overruled the certiorari and that ruling is excepted to in this court.

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Worrill, J.

“To authorize a judgment against a person who has not appeared and answered or otherwise submitted himself to the jurisdiction of the court, there must be not only service upon such person but also a legal return of such service. Until service has been made and a legal return entered, the court is without jurisdiction to enter judgment against a defendant who has not appeared. Wood v. Callaway, 119 Ga. 801, 803, and cases cited.” Albright-Pryor Co. v. Pacific Selling Co., 126 Ga. 498 (1), 500 (55 S. E. 251, 115 Am. St. R. 108) ; Elliott v. Porch, 59 Ga. App. 181 (200 S. E. 190). See also Callaway v. Douglasville College, 99 Ga. 623 (1) (25 S. E. 850); News Printing Co. v. Brunswick Publishing Co., 113 Ga. 160 (38 S. E. 333); Jones v. Bibb Brick Co., 120 Ga. 321 (1, 2), 324 (48 S. E. 25). Under the foregoing authorities a verdict in favor of the affidavit of illegality was demanded by the evidence in this case, and the superior court erred in overruling the certiorari and in entering judgment against the plaintiS in certiorari.

Judgment reversed.

Sutton, C.J., and Felton, J., concur.

*816 The illegality was tried by the justice of the peace and a jury. Hugh Prater, a deputy sheriff of Gordon County, testified that he served the defendant with the papers in this case. The defendant in execution introduced in evidence copies of the original papers showing no entry of service thereon and the justice of the peace docket with no entry of service shown thereon. The defendant in execution testified that she had not been served with the summons in this case.

The jury returned a verdict against the illegality and the defendant in execution petitioned the superior court for a writ of certiorari, which was sanctioned. The justice of the peace in his response admitted that there was no entry of service on the docket or return of service on the original summons. The judge of the superior court overruled the certiorari and that ruling is excepted to in this court.

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72 S.E.2d 810, 86 Ga. App. 815, 1952 Ga. App. LEXIS 1071, Counsel Stack Legal Research, https://law.counselstack.com/opinion/keys-v-keys-gactapp-1952.

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