Cockerham v. Lake Elliott

Full title: COCKERHAM v. LAKE ELLIOTT et al

Court: Court of Appeals of Georgia

Date published: Feb 21, 1979

253 S.E.2d 458 (Ga. Ct. App. 1979)

253 S.E.2d 458

Opinion

57163.

ARGUED JANUARY 16, 1979.

DECIDED FEBRUARY 21, 1979.

Motion to set aside judgment. Fulton State Court. Before Judge Camp.

Melvin Robinson, for appellant.

Swift, Currie, McGhee Hiers, Stephen L. Cotter, for appellees.

QUILLIAN, Presiding Judge.

Appeal was taken from the denial of appellant's motion to set aside a judgment granting the appellees a writ of possession. Held:

1. The motion to set aside was predicated on a purported nonamendable defect appearing on the face of the record.

The fact that the defendant's name was misspelled would not constitute such a nonamendable defect. See Jeffries v. Bartlett, 75 Ga. 230; Herron v. State, 93 Ga. 554 ( 19 S.E. 243); Webb v. State, 149 Ga. 211 ( 99 S.E. 630). Moreover, the misspelling of a person's name in the summons would not be vital in this action for a writ of possession since the premises in dispute were properly identified. The Supreme Court has held such proceedings to be quasi in rem in which constructive, as opposed to personal, service is sufficient. Pelletier v. Northbrook Garden Apts., 233 Ga. 208, 210 (2) ( 210 S.E.2d 722).

2. There is no merit in a constitutional issue raised for the first time in this court and not in the court below.

3. The remaining enumeration of error is meritless.

Judgment affirmed. Smith and Birdsong, JJ., concur.

ARGUED JANUARY 16, 1979 — DECIDED FEBRUARY 21, 1979.