Phaup v. Jervey

Supreme Court of Georgia

Phaup v. Jervey

180 S.E. 490, 180 Ga. 677, 1935 Ga. LEXIS 525

CourtSupreme Court of Georgia

DecidedMay 17, 1935

DocketNo. 10651

StatusPublished

This text of 180 S.E. 490 (Phaup v. Jervey) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Phaup v. Jervey, 180 S.E. 490, 180 Ga. 677, 1935 Ga. LEXIS 525 (Ga. 1935).

Pincite

Opinion

Bell, Justice.

1. In an undefended suit on a verified account in a justice’s court, the affidavit is sufficient proof where the defendant is served personally; but where service has been made by leaving a copy of the writ at the defendant’s residence, other evidence is necessary. Peeples v. Sethness Co., 119 Ga. 777 (47 S. E. 170) ; Dixon v. Holliman, 37 Ga. App. 353 (3) (140 S. E. 384); Code of 1933, § 24-1302.

2.* The lack of other proof, however, in case of service by leaving a copy at the defendant’s residence does not render a judgment for the plaintiff void. Brown v. Webb, 121 Ga. 281 (48 S. E. 917). The judgment is merely erroneous, and is subject to correction by a timely and proper proceeding at law. Royal v. McPhail, 97 Ga. 457 (25 S. E. 512). Upon such facts, without more, a suit in equity to cancel the judgment will not lie. The court did not err in sustaining the general demurrer and dismissing the petition.

Judgment affirmed.

All the Justices concur. J. Emmeli Baird, for plaintiff. J. H. Kennerly, for defendants.

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Bell, Justice.

1. In an undefended suit on a verified account in a justice’s court, the affidavit is sufficient proof where the defendant is served personally; but where service has been made by leaving a copy of the writ at the defendant’s residence, other evidence is necessary. Peeples v. Sethness Co., 119 Ga. 777 (47 S. E. 170) ; Dixon v. Holliman, 37 Ga. App. 353 (3) (140 S. E. 384); Code of 1933, § 24-1302.

2.* The lack of other proof, however, in case of service by leaving a copy at the defendant’s residence does not render a judgment for the plaintiff void. Brown v. Webb, 121 Ga. 281 (48 S. E. 917). The judgment is merely erroneous, and is subject to correction by a timely and proper proceeding at law. Royal v. McPhail, 97 Ga. 457 (25 S. E. 512). Upon such facts, without more, a suit in equity to cancel the judgment will not lie. The court did not err in sustaining the general demurrer and dismissing the petition.

Judgment affirmed.

All the Justices concur. J. Emmeli Baird, for plaintiff. J. H. Kennerly, for defendants.

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Bluebook (online)

180 S.E. 490, 180 Ga. 677, 1935 Ga. LEXIS 525, Counsel Stack Legal Research, https://law.counselstack.com/opinion/phaup-v-jervey-ga-1935.

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