Jones v. Bibb Brick Co. , 120 Ga. 321 ( 1904 )

Lamar, J.

A summons of garnishment directed to the Bibb Brick Company was served, August 23, 1902, the return of the officer showing that he had served the summons on “ Bibb Brick Co. by handing the same to John T. Moore, its secretary and treasurer.” No answer was filed at the December term, 1902, of the city court of Macon. After judgment against the defendant reciting that “ summons of garnishment. . was duly issued and served.. upon the Bibb Brick Company as garnishee,” and that no answer had been filed, the court, on September 15,1903, entered judgment against the Brick Company by default. This was during the fourth term and more than a year after the service of the garnishment. The motion to set this judgment aside is verified by Moore, and does not deny that he was in charge of the office or' of the business of the company in the county. The original motion conceded the service and offered to answer instanter, and therefore asked to have the default opened because.of the hardship, and because the company had acted in ignorance of the law. Even the amended motion fails to allege that Moore was not in charge, though it was therein contended that the service ought to have been on the president or other proper officer, without showing who was the proper officer, or alleging that the president was in the county at the time of the service. Not only is there no attack upon the validity of the service, but the movant treats it as valid, and asks to have the default opened, and for a hearing on the answer. The judgment on the motion also treats the service as valid, and allows the garnishee to answer. We are therefore to deal with a case in which the return of the officer, who had made good service, was incomplete and defective in its failure to allege that Moore, “secretary and treasurer,” was “in charge of the office or business” of the garnishee at the time the summons was handed to him in person.

1 — 7. Process and service are essential. But the return, being only evidence of what the officer has done in serving the writ, is not jurisdictional. Still it is manifest that a court ought not to proceed without having a legal return of record to show that its process had heen actually served and that it had acquired jurisdiction over the person of the defendant. If there is an entire absence of a return, or if the return made is void because showing service upon the wrong person, or at a time, place, or íd a manner not provided by law, the court can not proceed. Callaway v. Douglasville College, 99 Ga. 623. If, however, the fact of service appears, and the officer’s return is irregular or incomplete, it should not be treated1 as no evidence, but rather as furnishing defective proof of the fact of service. The irregularity may be cured by an amendment which does not make or state a new fact, but merely supplies an omission in the statement as to an existing fact. Where there has been valid service and no return, the deficiency may be supplied before taking further steps in the cause. If there has been service and a voidable or defective return, it may be amended even after judgment, so as to save that which has been done under service valid in fact but incompletely reported to the court. For in its last analysis it is the fact of the service, rather than the proof thereon by the return, which is of vital importance. Ordinarily service is either good or bad. But process and return existing in writing may vary between void, voidable, and perfect. If either is void, the judgment predicated solely thereon is a nullity. Where process and return are not void,, some classes of defects therein are cured by judgment.' For many things are sufficient to prevent a judgment from being rendered which would be insufficient to set aside a judgment actually rendered. Hence the Civil Code, § 5365, declares that “a judgment can not be arrested or set aside for any defect in the pleadings or record that is aided by verdict, or amendable as matter of form.” This right to amend a “return” so as to make it conform to the facts is allowed on general principles and by our statute. If the officer is in commission and liable on his bond, he may make this amendment voluntarily. Civil Code, § 5116. If. he is dead or out of commission, or refuses to make the return which the facts require, then the amendment may be ordered by the court nunc pro tunc. Civil Code § 5117. See also Civil Code, §§ 5125, 5109 ; Telford v. Coggins, 76 Ga. 683 (1) and (2); Mayer v. Chattahoochee Bank, 46 Ga. 606; W. & A. B. Co. v. Pitts, 79 Ga. 534. In Miller v. Brooks, 120 Ga. 232, the court, it is true, refused to allow a levy to be amended. But there the tax execution was not a writ of the court in which the motion to amend was made, since it issued from the office of the tax-collector of the county. The right to order entries nunc pro tunc, under the Civil Code, § 5117, does not apply to writs issued out of and returned to another and different tribunal. And whatever might be the power of a court of equity, in direct proceedings to which all persons concerned are parties, to reform the instrument or cure the defect, or to require such amendment, it is certainly true that the superior court of Chat-ham county could not, during the progress of an independent cause, amend, on motion, by an order nunc pro tunc, a fi. fa. issued by the tax-collector and levied by an officer who was then-dead.

This right to amend returns applies to garnishment and attachment cases when there has been in fact lawful service of summons of garnishment, but a defective or incomplete entry by the officer. Mayer v. Chat. Bk., 46 Ga. 606; Fee v. Kansas City R., 58 Mo. App. 90. See especially Hinckley v. St. Anthony Falls Co., 9 Minn. 56, where the omission to state in the return that service was on the “ managing ” agent was allowed to be cured by amendment after judgment by default against the garnishee. There are some cases apparently contra, but on examination it will be found that the objection was before verdict, on appeal, on error to the default, or in a direct attack on the judgment, where the evidence showed that the service was in fact void because the agent was not one named in the statute. Compare Haley v. Hannibal R. R., 80 Mo. 112; Tompkins v. Schmidt, 16 S. W. Rep. 174; and note in 21 Am. St. Rep. 56. Nor are the decisions construing Civil Code, §§ 1901, 4710, in conflict with what has been above stated. They can all be reconciled by noting whether in the particular case the process was valid or void; whether the return was void or only defective; whether the issue was raised before or after judgment, and whether on the hearing the evidence or pleadings showed that the service was good or bad. In Callaway v. Douglasville College, 99 Ga. 623, the return was attacked and amended before verdict. In Brunswick Co. v. Bingham, 107 Ga. 270, there was a direct attack on the default judgment, with allegation and proof that the defendant had never received any notice of the suit, and had never been served. In Hargis v. E. T., Va. & Ga. R. Co., 90 Ga. 42, the return was attacked before judgment; there was no offer to amend, and no proof that the agent was in charge, or that service upon him would have bound the company. The court therefore properly declined to enter judgment against the garnishee. In Southern By. Co. v. Hagan, 103 Ga. 564, the original record shows that the process was void, and the garnishee attacked the judgment not on the ground that the return was defective but because it had never been-served with a summons of garnishment. But none of these cases determine what would have been the effect of valid process and perfect service, with an incomplete or defective return where the judgment rendered thereon was attacked and the motion to set aside and evidence thereunder showed valid service in fact. Such was the ease of Third National Bank v. McCullough, 108 Ga. 249, where the service was perfect, but the return failed to recite that Hawkins, president, was in charge; and yet the judgment against the garnishee hy default was allowed to stand, there being no allegation in the attack thereon that Hawkins was not in fact the agent of the bank, in charge of its affairs in the county. In support of this ruling the court cited Sou. Ex. Co. v. Skipper, 85 Ga 565, determined under a statute where service upon an agent was only allowed when the president of the garnishee company resided out of the State. The return was silent as to the residence of the president, and yet after service upon the local agent alone the default judgment was held sufficient, the court saying that “in rendering judgment based on tbe service its sufficiency was adjudicated at least in an incidental way.” The same principle was involved in Holbrook v. Evansville Co., 114 Ga. 2, where the return did not follow the language of the statute, and was therefore not perfect in its verbiage.

Under the authorities, therefore, it is evident that the defective return might have been amended to conform to the facts, and that such amendment when made would have related back so as to make th§ record complete and the judgment perfect. But it may be claimed that here the'defect was never cured,since no amendment was ever made. None was necessary. Whatever may be the rule in ordinary cases, both the. allegations and the silence of this motion make it certain that the garnishee had been duly served. The presumption in favor of the validity of judgments and all the analogies of the law tend to sustain the proposition that a judgment once rendered can only be successfully attacked by proof that it is void. This proof sometimes appears from facts on the face of the record, or from the failure of certain other facts to appéar in the record. Shands v. Howell, 28 Ga. 226; Hobby v. Bunch, 83 Ga. 12, hot. And in many cases arising on affidavits of illegality it .has been held necessary not only for the defendant to show affirmatively that he has not been served but that he has not waived service by appearance, pleading, or otherwise. Cobb v. Pitman, 49 Ga. 578; LeMaster v. Orr, 101 Ga. 762 (1); Reed v. Jordan, 56 Ga. 282. Even the amended motion which for the first time made the attack on the officer’s return was fatally defective, because, under the rule requiring pleadings to be strictly construed against the pleader, its silence on the subject must be treated as an admission that Moore was an agent in charge.

8 — 10. But if the judgment by default had been set aside, it could not have changed the fact that the garnishee was in default as to filing its answer at the first term, as required by the Civil Code, § 4709. The court would simply have progressed in a circle, set aside one judgment by default solely for the purpose of entering another. Mere forgetfulness or ignorance of law furnished no sufficient excuse for the garnishee’s failure to answer, nor would it have justified, the court in allowing the garnishee to .make an answer to a summons of garnishment served four terms prior to the judgment by default. Motions like this must show a meritorious defense, and a right to make it at the time it is filed. But, evidently enforcing by analogy the rule in Civil Code, § 5072, as to opening defaults, the court held that after the second term, where no sufficient reason appears for allowing the garnishee to file its answer after default, it “ does not seem to be a matter even in the discretion of the court.” O'Neill Co. v. Ahrens Co., 110 Qa. 659. “Without some cause assigned or some reason or explanation given, the court has no discretion to allow the garnishee time to file his answer.” Bearden v. Metropolitan Co., 82 Ga. 606.

The omission of the word “ The” before “ Bibb Brick Co.” in the return of the officer was immaterial, or, if a defect at all, was a mere misnomer, and, like any other irregularity in the record was cured by judgment.

The case may be a hard one for the garnishee, but it was due solely to its failure to answer, and is of a character liable constantly to occur under the practice which does not require the garnishee to be served with rule nisi before final judgment.

Judgment reversed.

All the Justices concur.