Smith v. Morris

Decided August 15, 1859

Supreme Court of Georgia · decided 1859-08-15

Trover, in Carroll Superior Court. Decision by Judge Hammond, April Term, 1859. This case being called, and the parties having announced ready, and a jury being empanneled to try the issue, counsel for defendant moved to dismiss the action on the ground, that the process was incomplete, and void, in this, that the name of defendant was not set out therein, but was wholly omitted.

Good law ✅— No negative treatment on recordhow we know

Decided 1859-08-15

How this case has been cited

Cited by 3 later decisions — most recently February 1926

3 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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— Lumpkin J.

¶1By the Court.

¶2delivering the opinion.

¶3The objection to this process would, no doubt, be good at common law. For there the process is independent of the declaration, which is not filed until after the defendant has been brought into Court, by means of the process. Hence it must be full and complete of itself. Not so, however, under the Judiciary Act of 1799. That requires the process to be “annexed” to the writ. They must, therefore, be taken together. By the process, the Sheriff is commanded to summon the defendant to appear at the next Term of the Court to which it is returnable. The writ shows who the defendant is. Thus identified, he was served by the Sheriff, did appear, and filed his defence to,the action. We hold the process was good.

¶4Were it deficient, it is amendable under the ninth section of the Judiciary Act, which the plaintiff proposed doing, but was refused by the Court.

¶5Judgment reversed.