Sindall v. H. C. Thacker & Co.

Jackson, Judge. 1. Thacker & Company moved a rule against the sheriff to show cause why certain funds raised from the sale of Sindall’s property should not be paid to them. Certain creditors holding junior liens attacked the judgment of Thacker & Company, on the ground that Sindall was not served, and the United States district court for the northern district, therefore, had no jurisdiction, and on the further ground that the judgment was fraudulently obtained in that court; and again, because that court allowed an amendment of the declaration of Thacker & Company, which was never served. The United States marshal returned that he had served the defendant by leaving a copy at his most notorious place of abode, in Griffin, Georgia, which is within the northern district of Georgia. At common law this return would be conclusive, and could not be attacked at all. The statute of our state allows the return of the sheriff to be traversed, but that must be done in the court which rendered the judgment, and the sheriff must be made a party to the traverse: See Maund vs. Keating, page 396, and Lamb vs. Dozier, this term. We should certainly apply to the court of the United States either the common law rule or our own. If the former, the return of the marshal is conclusive; if our own law be applied, the return cannot be attacked except in the court which rendered the judgment, and the marshal should be made a party. This would seem to conclude the attack upon this judgment for want of service. 2, 3. But conceding that it could be attacked in the superior court of Spalding county, what are the facts and what the charge complained of. The facts are that Sindall left his family in Griffin at a house there; that at the time of service by the marshal his wife had just left it; the house and furniture was sold by her, but some of the furniture not delivered, remaining in the house, and his brother, who was in the house or returning [53] to it, got the service. Sindall appeared and pleaded to the case. The court charged substantially that if Sindall left his family in this house and they quit it, and some member was in it and got the paper, it was sufficient service. We think so, too. The residence of the family is the venue of the head of it, but it is the residence which he selects. They cannot change it without his assent. Where he leaves them is their home, until he chooses another for them, and there is no evidence thathe had done this. They were still-in Griffin; had gone to a boarding-house. Mrs. Sindall had sold the furniture but had not delivered it all, and had sold the house, but the dominion was still hers, in respect to possession, even if she could have sold it and the furniture in the absence of her husband. 4. But the appearance and plea and then withdrawal of it, cures the service even if defective. 5. In respect to the fraud used in procuring the judgment, the only error complained of is that the court charged that if any part of the judgment was for a valid debt, that part would stand. But the jury found that all of it was right a'nd the evidence certainly sustains the verdict. It was conflicting, but there is enough to sustain it. Hence the charge did no harm to defendant. 6. In respect to any irregularities in allowing amendments or other proceedings of like character in the United States district court, we cannot see what right the circuit court of Georgia has to interfere therewith. On the whole, we think the court below right in refusing the grant of a new trial and we affirm the judgment. Judgment affirmed.