Braselton v. Bradbury

Hall, Judge.

The defendant filed a traverse of entry of service of the plaintiff’s petition in the Superior Court of Fulton County, alleging that “at the first term of said court after notice to him of the entry of service purporting to show him legally served in Fulton County, Georgia,” he was making a special appearance to traverse the entry of service and to show that said court had no jurisdiction over him and his property; that the entry of service was untrue; that the defendant was never legally served and had not waived service, and was not a resident of Fulton County, Georgia, but was a resident of Harris County, Texas, and the District Court of Harris County, Texas had jurisdiction of his person and property. The plaintiff appeals from the trial court’s judgments overruling the plaintiff’s oral motion to dismiss the traverse and sustaining the traverse and dismissing the plaintiff’s petition. Held:

The entry of the sheriff upon the original process stated that he had served the defendant at a stated address “by leaving a copy of the within writ and process at his most notorious place of abode .in this [Fulton] County.” The defendant alleged all the essential elements of a traverse of service. Parker v. Rosenheim, 97 Ga. 769, 771 (25 SE 763). He specifically denied the truth of the'entry of service, which was a part of the record of the court in this action. This denial was essential to the traverse. Webb v. Armour Fertilizer Works, 21 Ga. App. 409 (94 SE 610); Deich v. American Discount Co., 218 Ga. 726, 728 (130 SE2d 595). It was not destroyed by the erroneous allegation contained in the traverse, that “the following entry of service was made by the Deputy Sheriff of Fulton County, Georgia: [the process requiring the defendant to appear to answer the complaint is quoted in full] to the defendant upon which this petition is served: This copy of petition and process was served upon you Nov. 4, 1964. D. J. Folds Deputy Sheriff.”

Felton, C. J., and Eberhardt, J., concur. Argued January 4, 1967 Decided January 20, 1967. Grant, Spears & Duckworth, William H. Duckworth, Jr., for appellant. Westmoreland, Hall & Pentecost, John L. Westmoreland, for appellee.

The trial court did not err in overruling the oral motion to dismiss the traverse and sustaining the traverse and dismissing the petition.

Judgment affirmed.