Barton v. Watkins Co. , 31 Ga. App. 301 ( 1923 )

Béoxbes, C. J.

1. “The recitals of fact in an affidavit of illegality must be taken as true, unless written traverse or joinder of issue be filed. If, however, the affiant goes to trial before a jur.y without distinctly objecting' on the ground that'no such traverse or joinder of issue fias been filed, he will be estopped thereafter from raising the objection.” McLeod v. Bird, 14 Ga. App. ,77 (I), 78 (80 S. E. 207), and citation. Under this ruling and the facts of the instant case, the plaintiff in error must be held to have waived the written traverse or joinder -of ■issue.

Decided December 5, 1923. Lowndes Calhoun, for plaintiff in error. Wathins, Russell & Asbill, contra.

2. Under the facts of this case, service of process issued by the clerk of the superior court, directed to the defendant, and served (as testified by the deputy sheriff) on a person (who told the officer making the service that she was the defendant’s wife), who lived in the house in « which the defendant resided, with an entry of service as provided by statute (Civil Code of 1910, § 5563), was good although the evidence introduced in behalf of the defendant showed that the person served was not his wife and did not actually live in the rooms occupied by the defendant, but occupied rooms across the hall from those in which the defendant lived. Cooper v. Fourth National Bank, 26 Ga. App. 44, and cases; cited on pages 46 and 47 (105 S. E. 375). The decision in that case was, on certiorari, affirmed by the Supreme Court. See 152 Ga. 599 (110 S. E. 723).

3. Under the above-stated rulings, the court did not err in denying the motion for a new trial or in overruling the motion to set aside the judgment previously rendered.

4. This court not being convinced that the writ of error in this case was prosecuted for the purpose of delay only, the request of the defendant in error that damages for such delay be awarded is denied.

Judgment affb'med.

Luke and Bloodworlh, JJ., concur.