Parker v. Rosenheim & Co.

Callaway, Judge. The illegality and the traverse to the sheriff’s return of service, though heard together by consent, were separate and distinct proceedings. The affidavit of. illegality is entirely without merit and fatally defective. It does not allege that the defendant has not been served, nor that he did not appear, nor any other fact showing that he had not had his day in court, and without these allegations he cannot go behind the judgment. The court committed no error in dismissing it on motion. The traverse to the sheriff’s return of service contained all the essential elements of such a traverse. It denied the truth of the return of service made by the sheriff; alleged that he had never been served in any manner; that he had never waived service, nor appeared or pleaded to said cause. He also alleged the term at which the traverse was filed to be the first term of said court after notice to him of said entry of service. He prayed for a rule requiring the plaintiff and the sheriff to show cause why said return of service should not be vacated and set aside. This complies with all the requirements of section 3340 of the code, and raises two questions of fact.to be passed upon by a jury: first, whether the traverse was made at the first term of the court after notice of the entry of service and before pleading to the merits; and second, whether the traverse being in time [772] the return of the officer was true or false. Dozier v. Lamb, 59 Ga. 461. Tlie fact that the defendant knew of the existence of the judgment in October, 1892, when the execution was levied upon his property, and in December, 1892, when he filed his illegality, does not negative his allegation in the traverse of a want of knowledge of the return of service. Knowledge of the existence of a judgment, and ignorance of the existence of a return of service upon the declaration and process whereon the judgment is founded, are not necessarily inconsistent. The traverse raised issues of fact which should have been passed upon by the jury, and the court erred in dismissing the same on motion. Judgment dismissing illegality affirmed. Judgment dismissing traverse reversed.