Bond v. Whitfield , 28 Ga. 537 ( 1859 )

By the Court.

Lumpkin, J.,

delivering the opinion.

When the exemplification was tendered in evidence, in this case, it was objected to, 1st, because the defendant had not been properly served with notice of the proceedings to establish the lost paper; and, 2dly, because the acceptors should have been made parties.

By the 2d § of the act of 1856, (Pamphlet 338,) it is Required, that the rule Nisi, to establish lost or destroyed papers, should be served personally on the party, if to be found within the State; and if not, published in some public gazette of the State for three months.

In this case, neither of these statutory requirements was complied with. A copy of the rule was left; as the sheriff certifies, at the notorious place of abode of the defendant; which was out of the county where the proceeding was instituted.

This cannot be considered served under the law, and consequently, the whole proceeding is void.

If this were a proceeding in chancery, there could be no doubt but that the acceptors would ha ve to be made parties. Is there any reason why they should not be in this common law proceeding, which is substituted for that in chancery ? The mode pointed out for effecting service, seems to contemplate that some of the parties will reside out of the county. We see no constitutional objection on the score of residence to making the acceptors parties,

Judgment reversed.