Smith v. Bryan

60 Ga. 628

• Court: Supreme Court of Georgia
• Decided: August 15, 1878
• Docket: No. 2; No. 3; No. 4
• Status: Published

Opinion

Jackson, Judge.

The firm of Bell & Bryan was sued in the justice court for some sixteen dollars in this case, and sums under fifty dollars each in three other cases, by Smith, and judgments were rendered against the partners. Thzfi.fa. in this case was levied upon the individual property of Bryan, who interposed an affidavit of illegality on various grounds, but mainly because the justice court rendered judgment within less time than fifteen days from the date of the summons and service thereon, the parties not appearing and pleading to the merits, and the service having never been made upon either partner in person or at their most notorious place of residence, but at their store The justice of the peace dismissed the illegality and ordered the execution to proceed, whereupon the defendant Bryan, as one of the firm of Bell & Bryan, carried the case to the superior court by writ of certiorari ; that court sustained the certiorari on the ground that the service at the store was insufficient, and the summons directed the parties defendant to appear at the justice court in less time than fifteen days from the date of the summons. The plaintiff excepted to this judgment, and brings the case here, assigning error on three grounds:

1. First he says that Bryan had no right to contest the validity of the fi. fas. proceeding against him, alone, but must do so in the firm name. Bryan’s affidavit is in his name as of the firm of Bell & Bryan, and it may be questioned whether he did not swear for the firm. But if he did not, inasmuch as it appears that his own private property was levied upon, and not that of the firm, we do not see why he might not legally show that it was proceeding illegally against him individually, and contest it alone by affidavit of illegality, and if decided against him, then by writ of certiorari.

2. A motion was made to dismiss the certiorari on another ground, because it was not brought within three months of the date of the justice’s judgment. To this it is replied that there was a former certiora/ri within the three months, which was dismissed because two cases between the same parties were joined together in one certiora/ri, and this was brought within six months of that dismissal. It has been, ruled by this court that a certiorari is a suit which, if dismissed, may be renewed within six months. 32 Ga., 433; 48 Ib., 362; 23 Ib., 8.

But it is argued that the case in 58 Ga., 149, is authority to the reverse of this, because it was there held that an attachment which was void, and dismissed on that account, could not be renewed under the six months act, but the certiorari here was merely irregular and not a mere nullity. It was dismissed because two cases could not be joined together, and we think that both or either could be renewed under the Code, §2932, and the adjudications of this court thereon, cited above.

3. So that the certiorari was rightfully before the superior court. Was the judgment of that court on the merits right ?

Certainly service at the store of defendants was not, legal service, Code, §4141, because the statute requires it to be personal, or at the most notorious place of abode of the defendant, and not his place of business. And it is also settled that the summons must be dated at least fifteen days before the time fixed for the trial in cases where the amount sued for is under fifty dollars; because it is ruled that in cases over fifty the summons must be dated at least twenty days before the time of trial, to give the court jurisdiction, and if in less time the judgment is void. 59 Ga., 532. And it is further held that the case cannot be continued to another time, because there was no legal court sitting to take cognizance of the case for any purpose. 59 Ga., 603. And that it seems was the case here.

The record however is confused in respect to the date of the first meeting of the court and of the summons, indeed the summons is dated in the record fifteen days before court; but as the defendants did not appear and plead in this case, and were not properly served, it appearing that neither of them resided at the store, we think the court did not err in sustaining this certiorari.

Judgment affirmed.