Solomon v. Newell , 67 Ga. 572 ( 1881 )

Crawford, Justice.

This was a claim case tried by the judge upon consent, who iound the property not subject to the fi. fa. The question upon which the case turned was, whether a judgment is void where there was personal service upon the defendant only fourteen days before the court to which the writ was returnable, and to which the defendant neither appeared nor answered.

The process of the court required the defendant to appear and answer to the plaintiff’s complaint in an action of debt at the August term, 1866, of Houston superior court. It was dated July 25th, and the term began Au_ gust 20th, being twenty-six days before the session of the court; and he was personally served, though not fifteen days as required by law. This failure to serve in time, gave him the right to cláim the benefit of fifteen days’ notice, before he could be compelled to plead or answer But that it gave him the right to disregard it entirely, and allow the case to proceed as regular, in the matter of service, I cannot agree. Had he appeared and demanded his right to the fifteen days in which to plead, then the case would have been dismissed, or else the court would have granted further time to perfect the service and made the succeeding term the appearance term of the case.

This view accords with the case of Hood vs. Powers, 57 Ga., 244, as. to the defendant’s appearance.

Having been served with a regular and legal process, by the regular and legal summoning officer of the court, he was bound to take due notice of the courts process, and to appear and defend himself against any irregularity in the service, and to demand his full fifteen days in which to plead. The court had regular jurisdiction of the subject matter, and jurisdiction over the defendant, though as to him it was irregular jurisdiction, yet it was his duty, if he desired to have the irregularity corrected, to move that it be done at the time to which he had been irregularly summoned to appear.

It is maintained, however, that the entire proceedings were void because of the failure to serve the defendant fifteen days before the court. And it is analogized to the decisions touching judgments rendered by the justices of the peace, when their courts were held at irregular periods. The difference between the cases is, that the latter are courts of special and limited jurisdiction, whilst the former are courts of general and unlimited jurisdiction.

But again, it is insisted that the cases Smith vs. Bryan, 60 Ga., 628, and Dugan vs. McGlaun, Ib., 353, are sufficient authority for declaring this judgment void. In the first case the service was in neither of the modes pointed out by law, but by leaving a copy summons at the store of defendant; besides it was a case before a justice of the peace.

The latter is a decision pronounced by Chief Justice Warner, and in which he says that it is by no means clear that such a judgment, so obtained, would not be void for want of service, but although he strongly intimates such an opinion, he only puts it in the form of a query. Whilst my own opinion is fixed and clear, that it does not make the judgment void, yet my brethren not being satisfied on the point, we do not so decide, especially as we all concur in the opinion that the judge below committed error in finding for the claimant, instead of that, 'under the evidence, the levy should have been dismissed.

Judgment reversed.