Olshine v. Bryant

189 S.E. 572, 55 Ga. App. 90, 1936 Ga. App. LEXIS 434

• Court: Court of Appeals of Georgia
• Decided: November 14, 1936
• Docket: 25493
• Status: Published

Opinion

Broyles, C. J.

1. A judgment can not be arrested for any defect in tire pleadings or record that is aided by tlie verdict, or is amendable as a matter of form. Code, § 110-705.

2. Where a defendant appears and pleads to the merits of a case, without pleading to the jurisdiction of the court, and without excepting thereto, he thereby admits the jurisdiction of the court (Code, § 81-503; Hudgins Co. v. Redmond, 178 Ga. 317, 173 S. E. 135); and after verdict and judgment, the question of jurisdiction can not be raised in a motion to arrest the judgment.

3. Appearance and pleading to the merits is a waiver of all irregularities of the process, or of the absence of process and the service thereof. Executive Committee v. Smith, 44 Ga. App. 184 (2) (161 S. E. 143).

4. There is no provision of law that notice of an amendment to a petition shall be given to the defendant. Miller v. Georgia Railroad Bank, 120 Ga. 17 (2) (47 S. E. 525); General Accident Cor. v. Way, 20 Ga. App. 106.(2-a.) (92 S. E. 650).

5. Where the defendant is served, and appears and pleads to the merits, and a verdict and judgment are rendered against him, he can not, in a motion to arrest the judgment, urge matters of defense which were put in issue and passed on by the court and jury. See Hardwick v. Hatfield, 30 Ga. App. 760 (119 S. E. 430), and cit.

Decided November 14, 1936. Rehearing denied December 17, 1936. William, T. Woolf, William, A. McOlain, Hooper S Hooper, for plaintiffs in error. Ben G. Williford, contra.

6. JJnder the foregoing rulings and ■ the facts of the instant ease, the court did not err in dismissing, on demurrer, the motion in arrest of judgment. Judgment dffirmed.

MacIntyre arndt Guerry, JJ., concur.