¶1On Motion for Rehearing.
¶2The state contends, in this motion for rehearing, that we overlooked Code § 110-709, relating to void judgments, in reaching our decision. We do not find Code § 110-709 to require a different result. Prior to the Civil Practice Act there were two statutes relating to void judgments, Code §§ 110-701 and 110-709. Code § 110-701 was repealed by the CPA but Code § 110-709 provides: "The judgment of a court having no jurisdiction of the person or subject-matter, or void for any other cause, is a mere nullity, and may be so held in any court when it becomes material to the interest of the parties to consider it.”
¶3The basis used at trial for the motion by the state "to set aside” the judgment of the court was that it was "void on its face” because "[n]owhere in said order or the record does it show where both attorneys made an affidavit that *335they had no knowledge of the relationship between the juror and prosecutor...” The basis asserted in the motion for rehearing on appeal was that the judgment was void because: (1) "there is no provision... for making a motion for mistrial after the verdict has been rendered,” and (2) the trial court cannot "treat a motion for mistrial as a motion for a new trial,” and (3) a rule nisi was not issued, nor was the state served, and no hearing was held on any motion for a new trial.
¶4The state appears to have overlooked the fact that the defendant attempted to raise the motion for mistrial before the verdict was announced but was advised by the judge: "I don’t feel that right here and now is the time to raise this point, there’s a proper way to raise these points.” Defendant’s counsel reiterated to the court that they "wanted to mention that... before you read that [verdict]. . .”
¶5We agree with the state that "[e]very fact which is ground for mistrial must be taken advantage of before a verdict is rendered, if it is known to the defendant or his counsel; otherwise it will be considered as waived.” Hatcher v. State, 176 Ga. 454, 460 (168 SE 278). The state is placed in an untenable position to claim lack of error or prejudice to a defendant where the trial court refused to permit the defense to raise the issue before the verdict and now claims because defendant did not do so he has waived such right. The trial court must have recognized the problem after the verdict was announced, because he granted as a motion for a new trial, the motion for mistrial, which he should have considered before the verdict was announced, since the defendant did not waive this right.
¶6We are not prepared to rule that the trial court cannot treat a motion for a mistrial as a motion for a new trial. As we stated in the principal opinion when we considered the state’s improper motion terminology, "there is 'no magic in nomenclature, and in classifying pleadings we will construe them to serve the best interests of the pleader, judging the pleading by its function rather than by its name.’ ” Frost v. Frost, 235 Ga. 672, 674 (221 SE2d 567). Exceptions to the overruling of a motion for a mistrial can be taken advantage of by a motion for new *336trial, although no exception was made. Livingston v. Wynne, 147 Ga. 307 (1a) (93 SE 877). Realizing he could not grant a mistrial after verdict the trial court construed the pleadings by its function and granted the new trial.
¶7Turning to the state’s last contention, we agree with their assertion that if there was no service, or waiver of service, of the motion for new trial the court would be without jurisdiction and its judgment would be void. Dunn v. Dunn, 221 Ga. 368 (2a) (144 SE2d 758). However, there is a presumption that service has been made and the burden is on the one attacking a judgment to show that service had not been perfected. Benton v. Maddox, 52 Ga. App. 813 (3) (184 SE 788). Cf. Liberty Mut. Ins. Co. v. Coburn, 129 Ga. App. 520, 521 (200 SE2d 146).
¶8"The rules permitting attacks upon judgments are designed to accommodate the desire to achieve justice and the practical necessity of bringing litigation to an end. To accomplish this Georgia has drawn a distinction between judgments which are void on their face and judgments which may be shown to be void for other causes. Except for certain statutory exceptions (Code § 110-711) judgments which are void for causes not appearing on their face may only be attacked directly and only by parties to the judgment or their privies.” Wasden v. Rusco Industries, 233 Ga. 439, 444 (211 SE2d 733). As this current attack is not on the same grounds urged at trial it is a collateral attack and the state is limited to defects appearing on the face of the record. See also Logan v. Nunnelly, 128 Ga. App. 43, 44 (195 SE2d 659).
¶9As stated in the principal opinion: " '[a] motion to set aside a verdict and judgment is not an appropriate remedy in a criminal case.’ ” Waits v. State, 204 Ga. 295 (49 SE2d 492). But after judgment has been rendered, either party may move in arrest thereof for any defect not amendable which appears on the face of the record. Gravitt v. State, 165 Ga. 779 (1) (142 SE 100). On a motion in arrest of judgment in a criminal case only the indictment, the plea, the verdict, and the judgment of the court, may be considered. McClendon v. State, 81 Ga. App. 218 (3) (58 SE2d 462); Anderten v. State, 92 Ga. App. 544 (3) (88 SE2d 719). Also, the Court of Appeals can consider only the indictment, plea, verdict, and judgment. Pippin v. State, *337172 Ga. 224 (1) (157 SE 185); Glover v. State, 217 Ga. 401 (2) (122 SE2d 744). Our examination of these documents fails to reveal any evidence to support the contention of the state. See Chance v. State, 27 Ga. App. 307 (108 SE 249). Thus, they have not carried their burden of overcoming the presumption of regularity. Liberty Mut. Ins. Co. v. Coburn, 129 Ga. App. 520, 521, supra.
¶10Furthermore, we are aware that an attack on a judgment as being void can be raised for the first time on appeal. Parker v. Bond, 47 Ga. App. 318 (2) (170 SE 331). However, this court has held that where it does not affirmatively appear from the face of the record that requisite notice and service were made, in the absence of any attempt of the. state to enumerate this as error, we are without authority to determine the validity of this enumeration "except where a want of jurisdiction” as to "person or subject-matter” is shown. Code § 110-709; Morrison v. Brown, 21 Ga. App. 217 (1a) (94 SE 85). See also Boland v. Barge, 108 Ga. App. 689 (4) (134 SE2d 463). Those exceptions were not raised.
¶11In the instant case, the state’s attempt to reverse the judgment of the court suffers from several deficiencies: (1) it was raised by a motion to set aside, which is not an appropriate method of reaching the issue; (2) the ground stated for reversal is not the same on appeal as it was at trial; (3) as the only statutory method left to attack a criminal judgment was a motion in arrest of judgment under Code § 27-1601, it could only relate to the merits of the offense charged; and because it was a collateral attack, only the indictment, plea, verdict, and judgment could be considered except where want of jurisdiction is alleged; and (4) the allegation of the void judgment on the basis now asserted was not raised on appeal but on a motion for rehearing. We deem it improper to "rehear” an allegation of error that was not raised in the trial court or previously in the appellate court.
¶12Motion for rehearing denied.