Orr v. Chattooga County Bank

Lumpkin, J. (After stating the foregoing facts.) By the Civil Code (1910), §.5311, it is declared: “If the defendant has not been served, and does not appear, he may take advantage of the defect by affidavit of illegality; but if he has had his day in court, he can not go behind the judgment by an affidavit of illegality.” And by section 5566 it is declared: “The entry of the sheriff or any officer of the court, or his deputy, may be traversed by the defendant at the first term after notice of such entry is had by him, and before pleading to the merits; but this shall not deprive the defendant of his right of action against the sheriff for a false return.” The first of these sections deals with the service or waiver of it. The second with the entry of the officer, which is the official evidence of his act. An affidavit of illegality may set up a want of service or waiver thereof, without any reference to the entry. If this is done, when the issue comes up for trial, the entry of the sheriff, or other proper officer, untraversed, furnishes conclusive evidence of service. To get rid of such conclusive effect, the entry made by the serving officer must be traversed, and the issue formed must be found in favor of the traverse. This-puts the official entry as a conclusive witness out of the way. If it appears from the illegality that there is an entry of service by the proper officer, it must be duly attacked, or the affidavit of illegality will be dismissed. A traverse of a return of service and an affidavit of illegality may be filed separately, each being sufficient in itself and not on its face demurrable. It has been held permissible to include in an affidavit of illegality a traverse of a return of service, made in the time provided by the statute. The officer whose return is attacked must be made a party; but it has been held that this can be done later by amendment. Dozier v. Lamb, 59 Ga. 461; O’Bryan v. Calhoun, 68 Ga. 215; Stone v. Richardson, 76 Ga. 97. The rules as to filing a traverse deal with “the entry of the sheriff or any officer of the court or his deputy.” Civil Code [251] (1910), § 5566. The holding that the entry of service by the officer is conclusive is based on the idea that it is the'act of a sworn officer whose acts will be given credit, and that, unless a traverse is made in due time and manner, the injured party is left to an action against the officer for a false return. But suppose that what purports to be an entry of service by a sheriff was never made or authorized by him, but was a bald forgery, of which he had no notice, how could he be held liable for a false entry? Would such an entry be conclusive on the litigant, who would be told that he could not set up this fact, but that he must sue the sheriff for a false return, and yet, when he does so, be met with proof that the officer never made it, or authorized it to be made? There is nothing in the decision in Dozier v. Lamb, 59 Ga. supra, which so holds. In the opinion Bleckley, J., said: “We are speaking, of course, of returns where there is no defect in the jurisdiction of the court, or in the legal authority of the returning officer. . . He takes the risk of encountering a return of service. Such return, if any, and if not shown to be invalid for want of jurisdiction in the court, or for want of authority in the officer who made it, will, as evidence of service, be> absolutely conclusive. . . While an affidavit of illegality need not refer to any return of service, though a return exist and be known to the defendant, yet, if it should needlessly disclose the fact that there is a return, the affidavit should either go on and traverse it, or allege want of jurisdiction in the court, or some other fact showing a traverse to be unnecessary.” It is clear that the entry of service there discussed as conclusive was one made by an authorized officer, not one made by some person wholly unauthorized by law or by the officer. Of course^ a defendant may waive service or estop himself from attacking an entry so made. In the case at bar the original affidavit of illegality contained the following statement: “Affiant further says that the pretended entry of service was never made or authorized by the officer whose name appears as having made the same.” This was a denial that there was any entry of service made by the officer whose name purported to be signed to the “pretended entry.” Service, waiver, and appearance were also denied. If this attack on such an entry, not merely as an entry by a lawful officer, but as a fictitious entry not made or authorized by an officer at all, should [252] be classified as a traverse, the allegations were sufficient to raise the question; and the officer whose name appears to be signed to such entry was made a party by amendment. Construing the allegations of the original affidavit together with those of the proposed amendment, to the effect that the affiant had no notice of such entry until about the time of the levy, after the preceding September term of court, this was sufficient to meet the requirement of the Civil Code (1910), § 5566, as to the time when the point was raised. It was urged in the brief of counsel for the defendant in error that no affidavit was made that the grounds stated in the amendment proposed to the affidavit of illegality were not known when the original affidavit of illegality was filed. But the allegations touching the entry of service did not in fact constitute a new ground, but an amplification of the former allegation; and as to the attorney’s fees, the court sustained the ground. So that no such point appears to have been made or passed upon by the trial court. In the brief of counsel for the defendant in error are certain statements of facts not shown in the record. This is not proper, and such statements will not be considered in deciding the case. There was no contention that the sheriff should be made a party, along with the deputy, in such case; and we do not consider any such question. The allegation in the proposed amendment that the affiant had a defense to the action was not discussed here, and need not be dealt with by us. Judgment reversed. All the Justices concur.