Opinion
39779.
DECIDED OCTOBER 16, 1962. REHEARING DENIED NOVEMBER 15, 1962.
Traverse to entry of service. Savannah City Court. Before Judge Alexander.
Crawford, Leeb Calhoun, John R. Calhoun, for plaintiffs in error.
Kennedy Sognier, John G. Kennedy, Jr., contra.
A traverse of an entry of service must allege that it is filed at the first term after notice to the defendant ( Code § 81-214), and must deny the truth of the entry of service. Parker v. Rosenheim, 97 Ga. 769, 771 ( 25 S.E. 763); Sanford v. Bates, 99 Ga. 145 (1) ( 25 S.E. 35); City of Albany v. Parks, 61 Ga. App. 55 (2) ( 5 S.E.2d 680); Caye Co. v. Davidson, 94 Ga. App. 574 (1) ( 95 S.E.2d 746). While an amendment of a proper traverse may be made to make the sheriff a party (see Stone v. Richardson, 76 Ga. 97) "in order for a timely traverse, however made, to stand as such and furnish the basis of such an amendment . . . it must plainly and unequivocally deny the truth of the return as shown by the entry of service." Webb v. Armour Fertilizer Works, 21 Ga. App. 409, 410 ( 94 S.E. 610). Therefore, a traverse properly filed at the first term after notice but which fails specifically to deny the truth of the entry of service is not amendable at a subsequent term to so deny the truth of the entry.
Judgment affirmed. Carlisle, P. J., and Russell, J., concur.
DECIDED OCTOBER 16, 1962 — REHEARING DENIED NOVEMBER 15, 1962.
After judgment in an undefended trover action, defendants filed a traverse to the entry of service. The traverse alleged filing at the first term after notice to the defendants but did not specifically deny the truth of the entry. Plaintiff's motion to dismiss was granted and the case was appealed. This court reversed the judgment because the motion was not renewed after a material amendment. Deich v. American Discount Co., 104 Ga. App. 308 ( 121 S.E.2d 702). The amendment specifically denied the truth of the entry and was allowed five terms of court after the original traverse was filed. Additional motions to dismiss were made and finally sustained on the grounds that the original traverse, failing to deny the truth of the entry of service, was legally insufficient and that the amendment, being itself the only legally sufficient traverse, came too late.