Hyfield v. Sims & Co.

Simmons, Justice.

The main point argued in this case was, whether the act of October 17th, 1886 (Acts 1886, p. 103), applied to justices’ courts. It was contended by counsel for the plaintiff’ in error that it does not apply, because it uses the word “ process,” and no process is issued from a justice’s court. The word “ process,” as used in the act, means the writ issued by any court against the de-' fendant, commanding him to appear, etc. It includes a summons from a justice’s court, as well as the process attached to the declaration by the clerk in a case brought in the superior court. Anderson’s Law Die., “ Process.” Thus construing the act, it follows, that when a summons issues from a justice’s court, commanding the defendant to appear at a certain time, etc., and service upon the defendant is made too late to render the case returnable at that time, “the service made shall be good for the next succeeding term thereafter, which succeeding term shall be the appearance term.” The case of W. & A. R. Co. v. Pitts, 79 Ga. 532, was relied on by counsel for plaintiff in error, to show that in a justice’s court a summons not served in time for tbe next ■term is not good at the next succeeding term thereafter. •The ruling in that case does not conflict with our ruling in this. The act of 1885 was not under consideration then ; indeed it was not applicable to the facts of that case. In that case there was no service at all upon the railroad company, and no suit against Parrott. The return of the constable showed service “ upon the defendant Parrott,” not as agent of the railroad company, but as an individual, and no effort was made to amend the return so as to show that Parrott was agent. The case was continued “ to perfect service.” This we held was error, because the justice’s court had no power or authority to continue a case to perfect service. It was also held that there being no service upon the railroad 'company (the sole defendant) ten days before the appearance term, the summons fell. Judgment affirmed.