Reese v. Shepherd

27 Ga. 226

• Court: Supreme Court of Georgia
• Decided: January 15, 1859
• Status: Published

Opinion

By the Court.

Benning, J.

delivering the opinion.

The Statute says, “And if any such process shall be delivered to the Sheriff, or other officer, whose duty it shall be to execute the same, so late, that it cannot be served in manner aforesaid, twenty days before the sitting of the Court to which it shall be returnable, such process shall not be executed, but the officer shall return the same with the truth of the case.” Pr. Dig., 420.

Shall not be executed — these are the peremptory words of the Statute.

The Statute, then goes on to say, that “ all process issued and returned in any other manner than that” therein before “ directed shall be” “ null and void.”

These latter words, then, apply to this case, and when they do apply to a case, they render the whole proceeding a nullity. So it has ever been held. See Ingram vs. Little, 16 Ga. Rep., 194.

This case is much stronger than that, for in this, there was no appearance by the defendants.

But I must say, that, I think, if there is one Statute that needs amendment, it is this one in relation to the issue and return of process.

We regret being compelled, as we think, we are, to reverse the judgment.

Judgment reversed.

McDonald J. absent.