Pendleton v. Valdosta Bank & Trust Co.

Broyles, J.

1. The filing of the plaintiff's petition, when valid process is attached and proper service is made on the defendant, is the commencement of the suit. And in a suit against several defendants, where valid process is attached to the petition, and service is made on one or more of the defendants in time for the appearance term, but some of them are not so served, and where, on motion of the plaintiff, the court passes an appropriate order to perfect service by the next term of the court on such defendants as have not been served, and where such service is afterwards perfected in accordance with this order, the suit as regards all of the defendants is kept alive, and will be treated as having been commenced at the time of the filing of the petition. Cox v. Strickland, 120 Ga. 104, 113, 114 (47 S. E. 912, 1 Ann. Cas. 870); Nicholas v. British Assurance Co., 109 Ga. 621, 624 (34 S. E. 1004). In such a case, as respects any of the defendants upon whom service has afterward been so perfected, the provision of section 4252 of the Civil Code, as to stating, in the statutory notice where attorney’s fees are claimed, the term of the court to which suit will be brought, is substantially complied with where in such notice it is stated that the suit will be filed at that term of the court. This ruling is not in conflict with the decision of this court in Toole v. Cook, 15 Ga. App. 133 (82 S. E. 772), for in that case the petition when filed had no process attached to it.

2. There was no error in overruling the demurrer to the petition, or in admitting in evidence the copy of the plaintiff’s notice of its intention to sue. And the court, sitting without the intervention of a jury, properly entered judgment for the plaintiff for the full amount sued for, including attorney’s fees.

Judgment affirmed.

Russell, O. J., absent.