Moye v. Walker , 96 Ga. 769 ( 1895 )

Simmons, C. J.

1. Where suit was brought in a justice’s court and the summons was duly served by leaving a copy thereof at the residence of the defendant, a judgment by default thereafter rendered against him was legal and valid, although when the service •of the summons was made as above stated, the defendant was temporarily absent from his home in attendance upon a sick wife, and never in fact received or saw the summons. Burbage v. American National Bank, 95 Ga. 503.

April 29, 1895.

Brought forward from the last term.

Equitable petition. Before Judge Butt. Muscogee superior court. May term, 1894.

C. J. Thornton and Morgan McMichael, for plaintiff. J. E. Chapman, for defendant.

2. Under the decision of this court in Brooks v. Mutual Loan and Banking Co., 95 Ga. 178, a notary public who is an ex officio justice of the peace may, in a city having a population of over 5,000, lawfully hold his court at a time different from that at which the justice of the peace of the same district holds his court; and the same is true as to place. Moreover, if the judgment rendered by a justice’s court is void because the court was not lawfully in session, advantage may be taken of the fact by illegality.

3. There was no error in sustaining the demurrer to the plaintiff’s equitable petition. Judgment affirmed.