Jackson v. Jackson , 235 Ga. 656 ( 1975 )

235 Ga. 656 (1975) 221 S.E.2d 427

JACKSON
v.
JACKSON et al.

30456.

Supreme Court of Georgia.

Submitted November 4, 1975. Decided December 2, 1975.

J. L. Jordan, for appellant.

Benjamin J. Gibson, for appellees.

UNDERCOFLER, Presiding Justice.

Bessie Portress Jackson filed a complaint in equity against her former husband, Curtis Andrew Jackson, and the sheriff and a deputy sheriff of DeKalb County, Georgia, seeking to set aside a judgment in a divorce suit entered in May, 1975. The complainant contends that she was never legally served with the divorce proceedings, did not waive service, and did not appear and plead in such proceedings; that the DeKalb County court never acquired jurisdiction over her; and that she has no adequate remedy at law.

The former husband answered the complaint and denied its allegations of lack of service and contended that the complainant had over 17 months from the time of the purported service to answer the divorce proceedings, that the complainant's attorney verbally acknowledged receipt of the petition, discussed the possibility of a property and child support settlement, that the complainant was estopped by laches from denying service of the divorce complaint, and that service was legally made on the complainant.

After a hearing where evidence was presented to the trial court, the complaint was dismissed. The complainant appeals. Held:

In both the brief of the appellant and the appellee each stated that at the hearing, the deputy sheriff who served the divorce complaint testified. This evidence and the other evidence presented to the trial court at the hearing has not been submitted to this court. The clerk of the trial court has informed us that this evidence is not on file in his office. Therefore, we are unable to review the decision of the trial court based on this evidence.

Judgment affirmed. All the Justices concur.