McDuffle Oil & Fertilizer Co. v. Iler , 30 Ga. App. 671 ( 1923 )

Luke, J.

In this ’case — which was a suit upon a domestic bill of exchange — a default judgment was rendered. The officer’s return of service was traversed, and a motion was made to set aside the judgment, upon the sole ground that the defendant had not been served with the suit. The trial court, after refusing to allow an amendment to the officer’s return of service, vacated the judgment. On July 16, 1922, the judgment vacating the judgment against the defendant was reversed by the Court of Appeals (28 Ga. App. 734, 113 S. E. 52), this court holding that the trial court erred in disallowing the amendment of service, and that “everything occurring thereafter was nugatory.” On August 9, 1922, an order was passed making the judgment of the Court of Appeals the judgment of the trial court. On September 28, 1922, the defendant filed an amendment to her original traverse and motion to set aside the judgment, in which she denied the truth of the entry of service of the deputy sheriff as made in his entry as amended in compliance with' the decision of this court. The trial court issued a rule nisi, and upon the hearing (both parties having agreed that the court should pass upon all issues of law and fact without the intervention of a jury) the movant offered a second amendment to her original motion, adding thereto a new and distinct ground of attack upon the judgment, to wit: that the contract sued upon was a conditional one, and that, therefore, the trial court was without jurisdiction to render a judgment without the verdict of a jury. The court decided against the traverse, and at the same time passed an order sustaining the motion to set aside the judgment, upon the ground that the court was without jurisdiction to render the judgment without the verdict of a jury. To this ruling the plaintiff excepted.

1. Upon the second trial of the traverse, the court having decided, in conformity with the decision of the Court of Appeals in this case (28 Ga. App. 734, 113 S. E. 52), that there was good legal service, and that such service related back to the date entered by the officer in his original return, and that it “ is to be considered the initial return,” this left the defendant in default. Southern Express Co. v. National Bank of Tifton, 4 Ga. App. 399 (61 S. E. 857); Jones v. Bibb Brick Co., 120 Ga. 321 (48 S. E. 25).

(a) The defendant being in default, and not having prayed within thirty days to have the default opened, it was then too late for her to make any plea to the merits, or any other plea which she might have made had she been in court.

(5) Admitting (but not deciding) that the trial court in this case had no authority to enter up judgment without a jury, this error merely rendered the judgment voidable (Civil Code of 1910, §§ 5957, 5960), and could not be made a ground of a motion to set aside the judgment. The proper method to correct such an error was by a direct bill of exceptions. See Georgia Railroad & Banking Co. v. Pendleton, 87 Ga. 751 (13 S. E. 822), and cases cited; Crow v. American Mortgage Co., 92 Ga. 815 (1), 817 (19 S. E. 31); Koch v. Brockhan, 111 Ga. 341 (36 S. E. 695); Bush v. Bank of Thomasville, 111 Ga. 666 (36 S. E. 900).

(c) Moreover, even if it be conceded that the defendant had the right, on motion to set aside the judgment, to call into question the exercise of jurisdiction, which the court clearly had of both the parties and the subject-matter, it was her duty to do so at her earliest opportunity, by a cross-bill of exceptions when the case was first heard by the Court of Appeals, and thus save the reviewing court a second consideration- of the same case, the jurisdiction of which she admitted by not making a timely objection in the trial court.

2. Under the above rulings and the facts of the case, it was error for the court, at a subsequent term of the court, and after the remittitur from the Court of Appeals had been made the judgment of the trial court, to allow an amendment to the original motion, and thereafter to vacate the default judgment.

Judgment reversed.

Broyles, C. J., and Bloodworth, J., concur.