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Lawskills.com Georgia Caselaw
DEICH et al. v. AMERICAN DISCOUNT COMPANY,
21931.
DUCKWORTH, Chief Justice.
Whether or not a traverse as originally filed was sufficient under the law to authorize an amendment is not presented for decision where the only exception is to a ruling on a motion to dismiss the traverse as thus amended. In such a case, when, as amended, the traverse is sufficient, it is not subject to dismissal on motion.
In the trial court, after judgment, the defendants traversed the service of the officers by alleging that they traverse the same because they "were never legally served at their residence or personally and had no notice of the purported service until on or about 8 July, 1960, . . . have never been legally served, have never waived service, and ha[ve]s never appeared or pleaded in said matter." The traverse complied with Code 81-214 other than whether or not the pleadings amount to a formal denial or impeachment of the entry of service as made by the serving officers who stated they "served the within petition and process upon the defendant(s) . . . in person." A motion to dismiss was filed, and thereafter a material amendment alleging the returns were untrue was allowed filed subject to objection. No objection was made thereto but a hearing was had on the motion to dismiss which resulted in dismissal of the traverse. On the first appearance in the Court of Appeals in Deich v. American Discount Co., 104 Ga. App. 308 (121 SE2d 702), this judgment was reversed. Thereafter, the lower court sustained a second motion to dismiss, holding that although the traverse as amended appears to be sufficient in law the amendment curing the defect was filed five terms too late and could not be considered. The Court of Appeals in Deich v. American Discount Co., 107 Ga. App. 22 (129 SE2d 179) affirmed, holding that a traverse properly filed at the first term after notice but which failed to specifically deny the truth of the entry of service is not amendable at a subsequent term. On application of the plaintiffs in error the writ of certiorari issued to the Court of Appeals to send up the case for review, the applicant complaining of errors in the judgment and in the language of the decision holding that, (1) in order for a timely traverse to furnish the basis for an amendment it must plainly and unequivocally deny the truth of the return as shown in the entry of service, and further that, (2) a traverse properly filed at the first term after notice, but which fails to specifically deny the truth of the entry of service is not amendable at a subsequent term to so deny the truth of the entry.
Where an entry of record made by the proper officer recites that the defendants were personally served with a copy of the process, it is conclusive evidence of service until set aside by a traverse as provided in Code 81-214. To be valid such traverse must deny the truth of the entry of service. Dozier v. Lamb, 59 Ga. 461; Parker v. Ronheim, 97 Ga. 769 (25 SE 763). But if the purported traverse as originally filed falls short of the requirements of law, is amended without objection to meet all requirements, an exception to a ruling on a motion to dismiss the traverse as amended does not authorize a ruling on whether or not the amendment should have been allowed but presents only a question of whether, as thus amended, the traverse was subject to the motion to dismiss. This question is settled by the ruling in O'Shields v. Georgia Pacific R. Co., 83 Ga. 621 (1) (10 SE 268, 6 LRA 152), where it is said: "After a declaration has been amended, a motion to dismiss the action raises no question as to the right to amend, but only touching the sufficiency of the declaration as amended." At page 623 of the opinion this court said: "Surely, if a waiver of any objection whatever to an amendment would not result from demurring generally to all the plaintiff's pleadings, raising no question as to the right to amend, we knoW of nothing from which such a waiver would result."
We find nothing wrong with the statement of law by the Court of Appeals that the traverse must plainly and unequivocally deny the truth of the entry of service but hold that it erroneously passed upon the allowance of the amendment, and because of this error, rendered an erroneous judgment.
Judgment reversed. All the Justices concur.
Kennedy & Sognier, contra.
Crawford, Leeb & Calhoun, John R. Calhoun, for plaintiffs in error.
ARGUED FEBRUARY 11, 1963 -- DECIDED MARCH 7, 1963 -- REHEARING DENIED MARCH 25, 1963.
Friday May 22 22:12 EDT


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