Simmerson v. Herringdine , 166 Ga. 143 ( 1928 )

Hines, J.

The motion to dismiss the writ of error upon the grounds that (a) the evidence is neither incorporated in the bill of exceptions nor attached thereto as an exhibit duly identified, (b) that the bill of exceptions does not contain the evidence, and (c) that at the time the bill of exceptions was certified there was in fact no brief of evidence legally approved and filed in the court below, is without merit, there appearing in the record a brief of the evidence duly approved by the court and ordered filed as a part of the record in the case.

The bill of exceptions specifies as material to a clear understanding of the errors complained of a brief of the evidence thereto attached as exhibit A. It contains no further specification of record. The plaintiff in error filed in this court his motion to amend the bill of exceptions so as to specify the parts of the record, including the brief of evidence approved by the court and ordered filed as a part of the record. “No writ of error shall be dismissed in the Supreme Court of this State, when, by an amendment to the bill of exceptions, which is hereby declared to be lawful and allowable, any imperfection or omission of necessary and proper allegations could be corrected from the record in the case.” Civil Code (1910), § 6184; Kelly v. McGehee, 67 Ga. 364. The motion of the plaintiff in error is allowable; but as,the clerk of the court below has sent up a duly certified copy of the brief of evidence which was approved and ordered filed as a part of the record on the date the bill of exceptions was certified, we deem it unnecessary to pass an order allowing such amendment.

'“That the note or other evidence of debt is barred does not ■ prevent the creditor thereafter availing himself of the mortgage or other security,” if he forecloses his mortgage within the proper time. Civil Code (1910), § 3268; Elkins v. Edwards, 8 Ga. 325. The creditor’s remedy on a mortgage under seal is barred after twenty years. Civil Code (1910), § 4359; Elkins v. Edwards, supra; Smith v. Downing Co., 21 Ga. App. 741 (6-c) (95 S. E. 19); Story v. Doris, 110 Ga. 65 (2) (35 S. E. 314); Duke v. Story, 116 Ga. 388 (42 S. E. 722); Pusser v. Thompson, 132 Ga. 280, 286 (64 S. E. 75, 22 L. R. A. (N. S.) 571). In a suit to foreclose a mortgage on land the filing of the petition in the clerk’s office will be considered as the commencement of the suit, if service is duly perfected as required by law. But if no timely service is made, the mere filing of a petition and the suing out of a rule nisi will not suffice to authorize the action to be treated as commenced. Filing, followed by timely service, creates a pending suit from the date of filing; but if there is no such service, the process loses its vitality, and the time of filing the petition to foreclose the mortgage and the suing out of the rule nisi, in the absence of service, will not prevent the bar of the statute of limitations. First National Bank v. Dukes, 138 Ga. 66 (74 S. E. 789); McFarland v. McFarland, 151 Ga. 9 (2) (105 S. E. 596).

The debt secured by the mortgage having matured on March 7, 1897, and service of the petition and process to foreclose the mortgage not having been made until February 26, 1926, although the petition was filed on March 6, 1917, one day before the statute attached, the mortgage was barred when service was perfected, which was in legal contemplation the commencement of the foreclosure proceeding.

One who purchases mortgaged property prior to the commencement of statutory proceedings to foreclose the mortgage, and who is not a party to such proceedings, is not bound by the judgment of foreclosure, and may, when the mortgage fi. fa. is levied, go behind the judgment and show that the mortgage was barred by the statute of limitations. Williams v. Terrell, 54 Ga. 462; Osborne v. Rice, 107 Ga. 281, 285 (33 S. E. 54). The judgment of foreclosure was void as against the claimant, who purchased from one of the mortgagors before the petition to foreclose was filed and the rule nisi sued out; and he could set up the invalidity of the judgment in the claim case.

Applying the above principles, the court below erred in not sustaining the claim.

Judgment reversed.

All the Justices concur.