Caldwell v. Alexander Seed Co.

Wade, J. “Where a second original is issued for tire purpose of serving a defendant residing in a county other than that in which the suit is pending, the process therein should be directed to the sheriff of the county in which the defendant so to be served resided. . . A sheriff of one county can not legally serve a process directed to the sheriff of another county. If he attempts to do so, and a judgment by default is entered against one so served, the judgment is void; and in an attack upon it by illegality, on the ground of no service, there is no necessity for a traverse to the return of the officer.” Strauss v. Owens, 6 Ga. App. 415, (65 S. E. 161). See also Powell v. Perry, 63 Ga. 417; Hill v. Hatcher, 53 Ga. 291; Callaway v. Harrold, 61 Ga. 112; Hillyer v. Pearson, 118 Ga. 817 (45 S. E. 701). (а) In an action pending in the city court of Greenville, Meriwether county, Georgia, against Alexander Seed Company, a corporation of Richmond county, Georgia, as principal or maker, and H. M. Caldwell et al., of Meriwether county, as indorsers, a second original issued for the purpose of serving the Alexander Seed Company, in the county of its residence, but the process annexed thereto was directed “to the sheriff of the city court of Greenville and his lawful deputies of said [Meriwether] county,” and not the sheriff of the county in which the Alexander Seed Company resided. Since the default judgment rendered against the Alexander Seed Company, based on service by a deputy sheriff of the county of Richmond of process directed to the sheriff of the city court of Greenville, Meriwether county; in an action pending in that county, was void, the court did not err in refusing to allow the original process to be amended. A void judgment could not be vitalized and made effective by amending the antecedent process by virtue of which it was obtained; there was nothing to amend. (б) The affidavit of illegality set up a sufficient legal defense, and the court did not err in refusing to dismiss it, and in thereafter rendering judgment sustaining it and dismissing the levy. Judgment affirmed.