Sweet v. Awtry

Court of Appeals of Georgia

Sweet v. Awtry

71 Ga. App. 341

CourtCourt of Appeals of Georgia

DecidedJune 28, 1944

Docket30540

StatusPublished

This text of 71 Ga. App. 341 (Sweet v. Awtry) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Sweet v. Awtry, 71 Ga. App. 341 (Ga. Ct. App. 1944).

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Opinion

Felton, J.

1. The court correctly found that George Awtry had not been personally served, and it is conceded, by silence, that a finding was correct to the effect that no guardian ad litem was [343]*343appointed to represent him. Service of a petition and process upon a minor, by leaving a copy thereof at his most notorious place of abode, is not authorized . . and could not be the basis of a valid judgment.” Wheeler v. Martin, 145 Ga. 164, 168 (88 S. E. 951). However, we think the court erred in holding in effect that George Awtry had not waived legal service by participating in the case through one presumably acting for him with authority, by filing a brief and a motion for a rehearing in the case in the Court of Appeals after he had attained his majority. Although such brief and motion were not signed by the attorney who represented him in the trial, as shown by the signature to his answer in the case, such papers w;ere signed by an attorney and attorneys at law, purporting to act as attorney and attorneys for both parties defendant in the case. This alone is enough to raise the presumption, and a conclusive one, in the absence of any evidence whatever to the contrary, that such participation and representation were duly authorized. Edwards v. Wall, 153 Ga. 776 (113 S. E. 190). Voluntary appearance after majority suffices to give the court jurisdiction. Welch v. Agar, 84 Ga. 583 (11 S. E. 149, 20 Am. St. R. 380); Code, § 81-209. The court erred in sustaining the motion to dismiss, and in dismissing the above action as to George Awtry.

Judgment reversed.

Sutton, P. J., and Parker, J., concur.

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Felton, J.

1. The court correctly found that George Awtry had not been personally served, and it is conceded, by silence, that a finding was correct to the effect that no guardian ad litem was [343]*343appointed to represent him. Service of a petition and process upon a minor, by leaving a copy thereof at his most notorious place of abode, is not authorized . . and could not be the basis of a valid judgment.” Wheeler v. Martin, 145 Ga. 164, 168 (88 S. E. 951). However, we think the court erred in holding in effect that George Awtry had not waived legal service by participating in the case through one presumably acting for him with authority, by filing a brief and a motion for a rehearing in the case in the Court of Appeals after he had attained his majority. Although such brief and motion were not signed by the attorney who represented him in the trial, as shown by the signature to his answer in the case, such papers w;ere signed by an attorney and attorneys at law, purporting to act as attorney and attorneys for both parties defendant in the case. This alone is enough to raise the presumption, and a conclusive one, in the absence of any evidence whatever to the contrary, that such participation and representation were duly authorized. Edwards v. Wall, 153 Ga. 776 (113 S. E. 190). Voluntary appearance after majority suffices to give the court jurisdiction. Welch v. Agar, 84 Ga. 583 (11 S. E. 149, 20 Am. St. R. 380); Code, § 81-209. The court erred in sustaining the motion to dismiss, and in dismissing the above action as to George Awtry.

Judgment reversed.

Sutton, P. J., and Parker, J., concur.

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Bluebook (online)

71 Ga. App. 341, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sweet-v-awtry-gactapp-1944.

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