Moody v. Womack

Court of Appeals of Georgia

Moody v. Womack

113 S.E.2d 226, 101 Ga. App. 226, 1960 Ga. App. LEXIS 832

Court of Appeals of Georgia·Decided February 11, 1960·No. 38139, 38140·Published

Opinion

Townsend, Judge.

“No petition shall abate for lack of service until so ordered by the court in which it was filed.” Ga. L. 1946, pp. 761, 768, amending Code § 81-201. Accordingly, where, on October 29, 1957, the plaintiff filed an action for damages against three defendants in the Superior Court of Cobb County, process was annexed to' the petition, the following day one of the defendants was served, and the remaining two defendants were personally served on July 27, 1959, it is no ground for abatement of the action as to- them that they were not served with a copy of the petition and process within five days of the filing of the petition as provided by Code (Ann.) § 81-202. It was accordingly not error for the trial court to deny the relief sought by the defendants Moody in [227] their motions and demurrers urging that they should be dismissed as parties defendant because the action had abated as to them prior to the time they were served, it not appearing that the trial court at any time entered an order to that effect.

Decided February 11, 1960. Nall, Miller, Cadenhead ■& Dennis, Robert E. Hicks, for plaintiffs in error. Cook, Llop & Long, Nick Long, Jr., Conley Ingram, Robert E. Hicks, contra.

Judgments affirmed.

Gardner, P. J., and Carlisle, J., concur.

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Townsend, Judge.

“No petition shall abate for lack of service until so ordered by the court in which it was filed.” Ga. L. 1946, pp. 761, 768, amending Code § 81-201. Accordingly, where, on October 29, 1957, the plaintiff filed an action for damages against three defendants in the Superior Court of Cobb County, process was annexed to' the petition, the following day one of the defendants was served, and the remaining two defendants were personally served on July 27, 1959, it is no ground for abatement of the action as to- them that they were not served with a copy of the petition and process within five days of the filing of the petition as provided by Code (Ann.) § 81-202. It was accordingly not error for the trial court to deny the relief sought by the defendants Moody in [227] their motions and demurrers urging that they should be dismissed as parties defendant because the action had abated as to them prior to the time they were served, it not appearing that the trial court at any time entered an order to that effect.

Decided February 11, 1960. Nall, Miller, Cadenhead ■& Dennis, Robert E. Hicks, for plaintiffs in error. Cook, Llop & Long, Nick Long, Jr., Conley Ingram, Robert E. Hicks, contra.

Judgments affirmed.

Gardner, P. J., and Carlisle, J., concur.

Moody v. Womack, 113 S.E.2d 226, 101 Ga. App. 226, 1960 Ga. App. LEXIS 832 (Ga. Ct. App. 1960).

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113 S.E.2d 226 (Moody v. Womack) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.