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Lawskills.com Georgia Caselaw
MCFALL v. GRIFFIN et al.
33674.
Traverse of service; from Floyd Superior Court-- Judge Nichols. May 5, 1951.
MACINTYRE, P. J.
1. Where a sheriff makes the following; entry of service upon the defendant in the court below: "I have this day served the defendant (giving her name) with a copy of the within petition and process by leaving the same at her residence and most notorious place of abode in this county," and the defendant traverses the truth of said entry of service, the sheriff is a necessary party to the traverse of his entry. Bell v. New Orleans & Northeastern Railroad Company, 2 Ga. App. 812 (59 S. E. 102); Georgia Railway & Power Company v. Davis, 14 Ga. App. 790 (82 S. E. 387.); Rawlings v. Brown, 15 Ga. App. 163 (82 S. E. 803); Citizens Bank of Bainbridge v. Fort, 15 Ga. App. 429 (83 S. E. 678); Producers Naval Stores Co. v. Brewton, 19 Ga. App. 19 (90 S. E. 735); Southern States Phosphate & Fertilizer Co. v. Clark, 149 Ga. 648 (101 S. E. 536); Southern States Phosphate & Fertilizer Co. v. Clark, 19 Ga. App. 376, 380 (91 S. E. 573); Jewell Tea Co. v. Pattillo, 50 Ga. App. 620 (178 S. E. 925); Lamb v. Dozier, 55 Ga. 677; O'Bryan v. Calhoun, 68 Ga. 215; Southern Ry. Co. v. Cook, 106 Ga. 450 (2) (32 S. E. 585); Green v. Grant, 108 Ga. 751 (32 S. E. 846); and
2. Where, in such a case, the sheriff is made a party to the traverse and acknowledges service of the traverse, and the court, after hearing evidence on the subject, finds in favor of the entry of service and against the traverse, and the defendant sues out a bill of exceptions to this court in which he designates the plaintiffs in the court below, Ralph and Howard Griffin, and the sheriff, D. G. Johnson, as defendants in error, the sheriff is a necessary party to the writ of error in this court (Quitman Oil Company v. Peacock, 14 Ga. App. 550, 553, 81 S. E. 908; Swift v. Swift, 191 Ga. 129, 11 S. E. 2d, 060); and
3. Where it appears that the only acknowledgment of service is in the following language: "The within bill of exceptions has been tendered to us and we approve it as being correct and complete as to the averments of facts therein made. This 25 day of May, 1951, Leon and Dean Covington, Attorneys for Howard and Ralph Griffin, Defendants in error; but it nowhere appears that the Sheriff or his attorney, has acknowledged or waived service of the writ of error, or that either of them has been served, the writ of error must be dismissed for want of a necessary party. Greene v. Kelly, 70 Ga. App. 806 (29 S. E. 2d, 647).
Henry J. Fullbright Jr., Harl C. Duffey Jr., for plaintiff in error.
DECIDED SEPTEMBER 11, 1951.
Saturday May 23 05:30 EDT


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