Cockerham v. Lake & Elliott

Quillian, Presiding Judge. Appeal was taken from the denial of appellant’s motion to set aside a judgment granting the appellees a writ of possession. Held: 1. The motion to set aside was predicated on a purported nonamendable defect appearing on the face of the record. The fact that the defendant’s name was misspelled would not constitute such a nonamendable defect. See Jeffries v. Bartlett, 75 Ga. 230; Herron v. State, 93 Ga. 554 (19 SE 243); Webb v. State, 149 Ga. 211 (99 SE 630). Moreover, the misspelling of a person’s name in the summons would not be vital in this action for a writ of possession since the premises in dispute were properly identified. The Supreme Court has held such proceedings to be quasi in rem in which constructive, as opposed to personal, service is sufficient. Pelletier v. Northbrook Garden Apts., 233 Ga. 208, 210 (2) (210 SE2d 722). 2. There is no merit in a constitutional issue raised for the first time in this court and not in the court below. 3. The remaining enumeration of error is meritless. Judgment affirmed. Smith and Birdsong, JJ., concur. Melvin Robinson, for appellant. Swift, Currie, McGhee & Hiers, Stephen L. Cotter, for appellees.