Rowland v. Towns

47 S.E. 581, 120 Ga. 74, 1904 Ga. LEXIS 447

• Court: Supreme Court of Georgia
• Decided: May 13, 1904
• Status: Published

Opinion

Evans, J.

1. “There being but one suit, one petition, one defendant, the clerk,has no power, without some direct and express order of the court, to issue more than one process.” Peck v. LaPoche, 86 6a. 814 (1).

2. It is within the power of the judge at the appearance term, or at a subsequent term where due diligenqe is shown, to grant an order authorizing a new process to issue. Allen v. Mutual Loan Co., 86 Ga. 74; Lassiter v. Carroll, 87 Ga. 731.

3. But where no service of the petition was made on the defendant, and at the appearance term an order was granted directing “ that service be perfected and that said case stand for announcement at the October term, 1902, of said court,” which order was not served on the defendant nor any new process attached to the petition, the judge properly sustained the motion of defendant, made at the April term, 1903, to dismiss the case because of such lack , of service. The service of the petition by the sheriff, where neither the order of the judge authorizing the service nor a new process was attached to the same, was a mere nullity.

Judgment affirmed.

All the Justices concur.