Elliott v. Porch

Eelton, J.

While in a case where there has been no return of service whatever, but it is made to appear that the defendant had in fact been served, the return of service may be made, on motion, by an entry nunc pro tunc so as to authorize the court to proceed with the case (Jones v. Bibb Brick Co., 120 Ga. 321, 325, 48 S. E. 25), still, in the absence of any return of service and of a proceeding of the nature above mentioned to supply the deficiency, the court has no jurisdiction to render a valid judgment (Callaway v. Douglasville College, 99 Ga. 623, 25 S. E. 850; News Printing Co. v. Brunswick Pub. Co., 113 Ga. 160, 162, 38 S. E. 333; Jones v. Bibb Brick Co., supra; Wood v. Callaway, 119 Ga. 801 (47 S. E. 178), and where, under the facts of the record in the present case, it was admitted that there was no return of service whatever before the judgment was rendered, and an execution1 was levied on the property of the defendant, who filed an affidavit of illegality on the grounds that he was not served with process or other notice of the suit out of which the execution issued, and that he did not waive service or appear in or defend the suit; and where, after the judgment was rendered, an entry of service nunc pro tunc was made by the officer, and judgment was rendered against the affidavit of illegality, the court erred in overruling the defendant’s motion for new trial. .

Judgment reversed.

Stephens, P. J., and Sutton, J., concur.