Elder v. Cozart , 59 Ga. 199 ( 1877 )

Jackson, Judge.

This was a motion to set aside a judgment solely on the ground that the defendant had not' been served, and the parties went to trial on that issue. The sheriff had returned and entered service on the writ, and he was not made a party to the traverse; but no objection was made thereto by the defendant to the motion. On the issue, the sheriff swore that he did serve the defendant in the suit — Elder; and there are circumstances which strongly corroborate his recollection, which was clear and distinct, and good reasons therefor were given. The defendant (Elder) only swore that he remembered nothing about being served, and the service was some ten'years before. The jury found that he was served, and he appeals to this court because the judge-refused to set aside the verdict and grant a new trial.

1. He says first that the judge expressed an opinion on the evidence. It appears from the record that, in summing up, the judge said to the jury that one party claimed so and so to be true, and that the other denied its truth, but insisted that such and such other facts were true. We think that this is no expression of an opinion on the truth of the evidence as claimed by either party, but that it put fairly before the jury the points on which they were in dispute. We hold it to be perfectly legitimate for the judge to do so, if ■fairly done; and in this case it was done in entire fairness to each party. See Weekes vs. Cottingham, 58 Ga. R., 559.

2. The second ground insisted on is, that the court charged to the effect, that if the defendant had notice of the judgment for some years, and did not move to set it aside, the jury were authorized to infer from it, and other circumstances in the case, that defendant had no objection to the judgment. This charge may be erroneous, but we think it immaterial, and that it could not, if corrected, affect the veildict. The intimation of an opinion, or its expression, on an immaterial fact, will not require a new trial; and if this charge amounts to an expression on the evidence, in that it says that the jury are authorized to infer one fact from another, to-wit: that the defendant had no objection to the regularity of the judgment, because he did not sooner move to set it aside; yét, such argument on the evidence, or intimation, or expression, as to the number of years that the judgment was not acted or, was immaterial. The date of the judgment showed how long it had been obtained, and the intimation about its age was wholly immaterial. See 12 Ga., 213 ; 56 Ib., 368.

3. It has been repeatedly ruled that the return of the sheriff is conclusive, unless traversed, and that the sheriff should be a party to the traverse, and that it must be made at the next term after notice of the entry. In this case, on this trial, the necessity of making the sheriff a party may have been waived, as also the formal traverse, and the time when it ought to be made, as the parties went to trial on the issue of service or no service ; but if the case should go back, Cozart could object to any traverse, as the time had expired for making it, and the entry would conclude the case.

Besides, the verdict is right. There can be little, if any, doubt that Elder was served, and a new trial would not change, and ought not to change, the result.

Judgment affirmed. -