Tilford v. Franklin Fire Insurance

104 S.E. 19, 25 Ga. App. 641, 1920 Ga. App. LEXIS 122

• Court: Court of Appeals of Georgia
• Decided: September 17, 1920
• Docket: 10994
• Status: Published

Opinion

Stephens, J.

1. Where a defendant has failed to appear and answer a petition within the time allowed by law and a judgment by default has been rendered against him, the judgment will, on proper motion filed during the term, be arrested when it does not appear that process was issued against the defendant named in the petition, or where it does not appear that the defendant was served with the petition and process.

2. Process against a defendant other than the one named in the petition is not good.

(a) Wheye a petition is filed against “The Franklin Fire Insurance Company of Philadelphia, Pa.,” as the defendant, a process attached thereto against “Franklin Insurance Co.,” being on its face against another and different defendant, is not good. Neal-Millard Co. v. Owens, 115 Ga. 959 (42 S. E. 266).

Decided September 17, 1920.

Motion to arrest judgment; from Walker superior court— Judge Wright. October 2, 1919.

Rosser & Shaw, for plaintiff. Smith, Hammond & Smith, Shattuck & Shattuck, for defendant.

3. Where one defendant was named in the petition and another defendant was named in the process, an entry of service, to the effect that service had been perfected upon “the defendant’s agent,” naming him, was ambiguous and showed no service upon the defendant named in the petition; and where the defendant named in the petition failed to appear and answer within the time allowed by law, a judgment by default, rendered against him upon such petition, process, and entry of service, was properly arrested and set aside.

Judgment affirmed.

Jenkins, P. J., and Smith, J., concur.