Baker v. Thompson , 75 Ga. 164 ( 1886 )

Hall, Justice.

The court, we think, erred in holding the judgment rendered in this case void, and was certainly right in correcting his error by awarding a new trial on the plaintiffs’ motion. The process attached to the declaration was regular and proper as first issued. There was no service of it to call the defendant to tho term of the court to which it was returnable, and the omission was not discovered until the trial term, when an order was passed by the court, the effect of which was to make the case returnable to the succeeding term, and to afford the party an opportunity to have the writ served. The clerk neither changed the dates of the original process nor appended a new process, nor did he attach this order to the original writ and copy. The writ in this condition was served twenty days previous to the term to which it was last made returnable, and at the succeeding or trial term, the defendant failing, to appear or to make defence, a judgment by default was rendered against him. In this he acquiesced for three years, and at the end of that time, the execution issuing on the judgment was levied, and the property on which the levy was made having been claimed, on the trial of the issue made upon the claim, the plaintiffs in error inad'e the motion above stated, and the foregoing facts appearing, the execution was ruled out, because, as the court then thought, the process was void. On another hearing, however, he came to a different conclusion. It is very true that the process, as served, may have been irregular for want of conformity to the practice of the courts; it may have been illegal, too, because it failed to follow the requirements of the law; it was not void, however, because it could have been amended, but if the defendant had notice of the pendency of the suit and failed to object in time to these defects,, and suffered judgment to go against him without insisting on them, then he waived them and they were cured by the judgment. The judgment, when rendered, was acquiesced in, and he certainly was estopped from calling it in question; and being binding between the parties, it was, in the absence of fraud, equally binding upon third persons. Code, §§8345, 206; Cobb’s Dig., 488; Blake vs. Camp, 45 Ga., 298, 299; Dobbins vs. Jenkins, 51 Id., 203; Williams vs. Buchanan & Bro., decided at the present term, establish principles that fully vindicate the final conclusion reached by the j udge in this case.

Judgment affirmed.