Branch v. Mechanics' Bank , 50 Ga. 413 ( 1873 )

Trippe, Judge.

Five terms of the Court had passed after the filing of the declaration and the return made by the sheriff of non est inventus and of the death of the president of the corporation. In the meantime no step whatever had been taken by the plaintiff. At the sixth term the motion was made to perfect service under section 3370 of the new Code. This, of course, involved the necessity of amending the process, or rather- the issuing of a citation by the clerk, as required by that section. No legal reason was shown for such long delay. In fact none whatever has been given. It was stated in the argument that the case had been continued from term to term. Wé understand this to mean that by operation of law the case stood continued from the fact that no entry was made on the docket or minutes. The record shows none. Indeed, where there are no parties, it cannot properly be said there was a case having such a standing in Court as to be the subject matter of a continuance. There is really nothing to continue — no party in Court to be heard on a motion for that purpose. By the term continuanoe, it is intended to refer in the foregoing use of that word to those continuances of cases when they are called for trial, on special cause shown, and not to the technical continuance of an action in Court, by means of an alias and pluries writ, under the English practice.

It was claimed in the argument by plaintiff in error, that when the declaration was filed in the office of the clerk, it was a commencement of the suit. This is conceded: Code, section 3333. But we understand by this that when the suit is perfected by service on the defendant then its commencement shall date from the filing of the declaration, wdrich is ascertained from the indorsement by the clerk. Without service it amounts to nothing. It would scarcely be contended that a plaintiff, whose right of action lacks but a few days of being barred by the statute of limitation, could, by simply filing his petition in the clerk’s office, with the clerk’s entry thereon, and then dismissing it without service, gain six months longer time to recommence an action for the same cause.

Upon an examination of the different cases which have been before this Court, and the decisions which were referred to by counsel for plaintiff in error as being favorable to the judgment he now invokes, it will be seen that in each of them there had been service on the defendant, or one of them, when there were two. In the case of White vs. Hart et al., 35 Georgia, 269, which was chiefly relied on, both defendants had been served when the motion in the Court below was made. The motion was also made at the second term, and a good reason shown why the necessity for the amendments asked for had occurred. The plaintiff had shown diligence, and had, even without an order, as soon as he had learned the residence of one of the defendants, caused him to be served. It is true Judge Lumpkin used the strong expression in pronouncing in that case, in reference to amendments and perfecting service, that “ relaxation and not stringency is the rule now.” But this was not intended to be taken in the broad sense sought to be given to it; for he further says, in immediate connection therewith, “ so that now, if there be a legal cause of action set out in the declaration, and the defendant has had notiee of the pendency of the suit, all other objections are to be disregarded, by so amending the proceedings as shall subserve the ends of justice:” New Code, 3345. In Ballard vs. Bancroft, 31 Georgia, 503, it was said, “the delivery of a copy of the process, with a copy of the petition to the defendant, is essential to perfect service, and to give the Court jurisdiction of the case,” and this was made one of the head notes in that case. It is true, the motion was to dismiss the case, because the defendant had not been served with a copy of the process; and the dismissal was ordered by this Court. The decision is referred to, for the purpose of showing how far Courts have gone in holding that service is one of the essentials to give jurisdiction.

The observations made by Harris, Judge, in delivering the opinion in the case of Loyd & Wells vs. Welch, 35 Georgia, 104, and which seems to have had the sanction of the whole Court, are very significant, and bear strongly on the point under consideration. The suit was returnable to November term, 1865, and no service was made until May, 1866. At the judgment term, a motion was made to dismiss for that cause. The motion was refused and plaintiff allowed to amend the process so as to make it correspond with the sheriff’s return. Judgment was rendered for plaintiff. The defendant entered an appeal, and, also, sued out a writ of error to this Court. A motion was made to dismiss the writ of error on the ground of the pendency of the appeal. In sustaining the motion to dismiss, it was said: “We are precluded from considering whether the Court exercised a sound discretion or not in allowing, the process of the Court, which issued unquestionably correctly, in which there was no error and was according to the truth of the case, to be amended so as to make the date of its issue conform to the service of the sheriff in May, 1866 — months after the period had expired, when, according to law, the writ should have been returned to office. We regret this, as it would have furnished a proper case in which to have given an expression of opinion as to whether there are not rational and legal limits as to amendments, under our statutes; what amendments are matters of course, and what are not.” This was by the same Court, and at the same term, when White vs. Hart et al., was decided.

We are fully aware of the great liberality allowed by law, and as shown by many of the decisions, as to amendments both of declarations and process, and, also, as to perfecting service; but we do not think that any statute or decision has gone so far as to permit a plaintiff lo file his petition, and after a return of no service by the sheriff, to await the expiration of five terms without any action ivhatever, and then, without any legal^cause shown for the laches or delay, ask to be permitted to do that which could as well have been done, and should have been done more than two -years previously. It would be practically an avoidance of the statute of limitations, and would be in utter variance with and a total departure from all law and rules which exact diligence and condemn laches and neglect.

Judgment affirmed.