Summary
In Sherman v. Floyd, 98 Ga. App. 661 (2) (106 S.E.2d 330), it was said: "The only process that a clerk is authorized to issue and annex to a petition is one calling upon `the defendant or defendants to answer the petition within thirty days after the service of the petition and process.' Code (Ann.) § 81-201."
Summary of this case from McCoy v. Romy Hammes Corp.Opinion
37434.
DECIDED NOVEMBER 18, 1958.
Practice and procedure. Floyd Superior Court. Before Judge Hicks. August 28, 1958.
Wright, Rogers, Magruder Hoyt, Clinton J. Morgan, for plaintiff in error.
Maddox Maddox, James Maddox, contra.
1. The motion to dismiss the writ of error on the grounds that the judgment excepted to will not support a bill of exceptions as required by Code (Ann.) § 6-701 is without merit and is denied. Watson v. Kvaternik, 33 Ga. App. 415 (1) ( 126 S.E. 552).
2. The only process that a clerk is authorized to issue and annex to a petition is one calling upon "the defendant or defendants to answer the petition within thirty days after the service of the petition and process." Code (Ann.) § 81-201. A prayer which reads "that process issue requiring the said defendant to be and appear in this court to answer this complaint" of necessity and by implication prays that the process issue according to law as set out in Code (Ann.) § 81-201, and, where in response to such prayer process is issued requiring the defendant to answer the petition within thirty days of service of the petition and process, there is no variance between the process and the prayer therefor. In Seaboard Air Line R. Co. v. Hollomon, 95 Ga. App. 602 ( 98 S.E.2d 177), the prayer was, "That process do issue directed to the said defendant, requiring them to be and appear at the next term of this court, then and there to answer this your petitioner's complaint." (Emphasis supplied.) This prayer, unlike the one in the instant case, was restrictive and qualified (and actually called upon the clerk to issue a process which he was not authorized by law to issue) and the court held that "the clerk has no authority to require a person to appear at a time other than that at which the prayer for process prays for his appearance."
The court did not err in sustaining the demurrer to the motion to quash which in effect denied that motion.
Judgment affirmed. Quillian and Nichols, JJ., concur.
DECIDED NOVEMBER 18, 1958.
Ray Floyd and others sued George B. Sherman. In their petition the plaintiffs prayed as follows: "That process issue requiring the said defendant to be and appear in this court to answer this complaint." The process attached to the petition read as follows: "The defendant George B. Sherman is, hereby required personally or by attorney to be and appear at the Superior Court to be held in and for said County within 30 days from the date of service of the within petition upon each defendant as shown by entry of the service officer set forth below, then and there to answer in writing the plaintiff's complaint, as in default thereof said Court will proceed as to justice shall appertain." Service of the petition and process was perfected upon the defendant. The defendant appeared specially and moved to quash the process and service and to dismiss the petition on the ground that the clerk was not authorized to issue a process calling upon the defendant to answer within thirty days of service where the prayer for such process did not specifically pray for such process. The plaintiffs filed what amounted to a general demurrer to the motion to quash. The court sustained this demurrer which had the effect of denying the motion to quash and the defendant excepts.