Hays v. Fourth National Bank

Russell, C. J. An affidavit of illegality upon the ground that notice of the suit upon which the execution was based was not legally served is not sustained by introducing in evidence the following entry of service, upon the docket of the justice who tried the case, properly dated and signed: “Served a copy of the within summons and note on the defendant by leaving at his most notorious place of abode.” The provisions of section 4717 of the Civil Code designate the manner in which service of a suit shall be made, but do not prescribe a form for the entry of the return thereof. The fact that in the present case the further descriptive word “usual,” as used in section 4717, was omitted in making the entry does not void the service or the entry. The most notorious place of abode could be none other than the usual place of abode. See, generally, Jones v. Tarver, 19 Ga. 283; Wood v. Callaway, 119 Ga. 802 (47 S. E. 178); Griffing v. Carlwell, 1 Rob. (La.) 16; Bruce v. Cloutman, 45 N. H. 37 (84 Am. D. 111); State v. Toland, 36 S. C. 515 (15 S. E. 599); 29 Cyc. 128; 39 Cyc. 873. In the absence of any evidence whatever that the return of service as entered did not speak the truth and that the defendant in fact was never served as therein stated, no judgment other than that rendered upon the affidavit of illegality would have been proper; and the judge of the superior court did not err in refusing to sanction the petition for certiorari. Judgment affirmed.