Courier-Herald Publishing Co. v. Georgian Co.

Atkinson, J. 1. It is provided in the Civil Code (1910), § 5553: “If the defendant in an equitable proceeding does not reside in the State, service of the petition or any order .of the court may be made by publication. If the non-resident defendant is represented in court by an attorney at law or in fact, service on such attorney shall be sufficient. And in all cases not embraced within the foregoing provisions, the judge may prescribe for extraordinary service according to the exigencies of each case.” Applying the law as embodied in this statute, service upon a non-resident corporation can not be made in an equitable suit to enjoin a common-law fi. fa. in favor of such corporation, by delivering a copy of the petition and process and rule nisi in the equity suit to a person who is the attorney at law for the plaintiff in fi. fa., representing such non-resident corporation within the jurisdiction for the purpose of having the fi. fa. levied and enforced against the property of the defendant in fi. fa. 2. A return of service .which purports to have been made in the circumstances stated in the preceding division is void, and will not authorize the judge at the appearance term of court to mark the ease in default as against such non-resident corporation. Pennsylvania Casualty Co. v. Thompson, 123 Ga. 240 (51 S. E. 314); News Printing Co. v. Brunswick Publishing Co., 113 Ga. 160 (38 S. E. 333). 3. Where in such circumstances, at the appearance term, the judge marked in default an equity suit of the character mentioned in the first division, it was not erroneous at the trial term, on written motion of the non-resident corporation, to vacate the default judgment, without payment of costs. 4. Where a vendor sells goods to a vendee and subsequently brings a suit at law for recovery of the price of the goods, and the petition alleges a stated sum as the price of the goods, and the defendant is duly served with petition and process and fails to appear or make any defense or answer to the suit, and judgment is rendered against him by default for the full amount alleged to be due in the petition, it is not - a good charge of fraud, accident, or mistake to allege that the defendant in such action was misled and deceived by the receipt of frequent written statements received from the plaintiff from-shortly after the date of the purchase until after the suit was filed and until the judgment was obtained, which showed the amount due was different and substantially less than that alleged to be due and sued for in the petition. The sending of such statements did not amount to representation that a judgment would not be taken for the amount alleged to be due in the petition. It was the duty of the defendant, if the amount sued for exceeded the actual amount of the debt, to answer the petition and set up such fact. The case differs on its facts from, Hall v. Lockerman, 127 Ga. 537 (56 S. E. 759),Dodge v. Williams, 107 Ga. 410 (33 S. E. 468), and Marhham v. Angier, 57 Ga. 43; cited on the brief of the plaintiff in error, and Southern Railway Co. v. Planters Fertilizer Co., 134 Ga. 527 (68 S. E. 95), and Beverly v. Flesenthall, 142 Ga. 834 (83 S. E. 942), of like import. 5. Applying the principles stated above, even if the proposed amendment [584] liad, been allowed, the petition as amended would not have alleged a cause of action; and consequently the judge did not err in disallowing the proposed amendment and dismissing tjie action. No. 4570. June 24, 1925. Judgment affirmed. All the Justices concur, except Gilbert, J., absent for providential cause. William Brunson, for plaintiff. Blachshear & Harrell, for defendants.