Opinion
36063.
DECIDED FEBRUARY 21, 1956.
Action for damages. Before Judge Davis, Presiding. Floyd Superior Court. November 6, 1955.
Clinton J. Morgan, Wright, Rogers, Magruder Hoyt, for plaintiff in error.
Clower Anderson, contra.
While a void process is not amendable, the right of amendment to cure a mere defect or irregularity therein is as broad and liberal as that allowed for the amendment of other pleadings. Accordingly, where the clerk of court erroneously directed a process intended to be served on the Secretary of State under the Nonresident Motor Vehicle Act to the sheriff of the county of the defendant's residence in another State, this defect was amendable, and the petition, thereafter properly served with a corrected process, was not subject to dismissal for lack of process.
DECIDED FEBRUARY 21, 1956.
Mrs. Maude McCary filed an action in Floyd Superior Court for damages resulting from the death of her husband in a collision with the defendant Russell Everett, a nonresident, on Georgia highways. The prayers of the petition relating to process were as follows: "1. That process issue and be served upon the defendant in the manner provided by law. 2. That second original issue for service upon the Secretary of State of the State of Georgia as attorney in fact of defendant." The bill of exceptions states that "the clerk of said court issued a second original and on September 12, 1955, mailed to the Secretary of State of Georgia, a copy of the original petition and process." The process and copy process were directed to "the Sheriff of DeKalb County, Alabama." The defendant moved to quash the process and service and dismiss the petition. The plaintiff then amended by striking the second paragraph of her prayer above quoted and adding a new prayer as follows. "That the clerk of said court be directed to amend and correct the original process attached to the petition by striking the words, `To the Sheriff of DeKalb County, Ala., Greeting:' and inserting in lieu thereof the words: `To the Sheriff of said county, Greeting:', and that a copy of the amended and corrected process and a copy of the plaintiff's petition and of this amendment and order allowing same be served upon defendant in the manner provided by law." The court allowed the amendment subject to objection and entered an order giving direction to the clerk in accordance therewith. The defendant moved to strike the amendment, to have the order of court set aside and the acts of the clerk pursuant thereto declared void and the petition dismissed for want of service. The overruling of this motion is assigned as error.
A void process is not amendable. Code § 81-1313. Under Code § 24-104 (6), "Every court has power . . . to amend and control its processes and orders, so as to make them conformable to law and justice; and to amend its own records so as to make them conform to the truth." In Pearson v. Jones, 18 Ga. App. 448 (1 a) ( 89 S.E. 536) it was held: "An irregularity in the direction of the process of a suit is amendable." In Georgia Power Co. v. Ozburn, 53 Ga. App. 797 (1) ( 187 S.E. 154) it was held: "The process, not being directed to any officer authorized to serve process in the county of the defendant's residence, was in this respect defective, but the defect was amendable." Counsel for the plaintiff in error, however, contends that since these cases deal with situations wherein the officer to whom process was first directed was the wrong officer, or the officer of the wrong county, they were nevertheless on their face directed to officers of counties where such officers might lawfully serve a process, and were therefore not void processes within the meaning of the statute, but merely voidable, for which reasons such cases are not controlling whereas, here, the process is directed to an officer of another State and thus the document shows on its face the lack of jurisdiction of the court, which it is contended should demand the conclusion that the process is absolutely void and therefore not amendable. To direct process to an officer having no jurisdiction to serve the same is equivalent to directing process to no officer at all. It was held in Mitchell v. Long, 74 Ga. 94 (3) that statutory requirements relating to service of process should be construed in pair materia, and, when this is done, a process directed to no officer at all is not void but irregular and such defect is amendable. This is a vastly different situation from that presented in Neal-Millard Co. v. Owens, 115 Ga. 959 ( 42 S.E. 266) where the wrong person was named in the process as a defendant to the action. The Mitchell case, supra, holds (page 98) that the power to amend process given under the authority of Code § 24-104 (6) is fully as broad and liberal as that allowed for the amendment of other pleadings. Laches on the part of the plaintiff in perfecting service may render the writ abortive ( Nail v. Popwell, 32 Ga. App. 20, 122 S.E. 632), and cause the court to lose jurisdiction, but it appears from the record here that the petition was filed on September 12, 1955, returnable to the October term, and that on November 4, 1955, at the same term of court, the amendment was allowed and the Secretary of State, as attorney in fact for the defendant under the provisions of Code (Ann. Supp.) Chapter 68-8 relating to service of nonresident operators of motor vehicles in this State, was properly served in accordance with the provisions of Code (Ann. Supp.) § 68-802, and that copy of such petition and process were forwarded by him to the defendant and received by the latter through registered mail.
The trial court did not err in denying the motion to quash the process and dismiss the petition.
Judgment affirmed. Gardner, P. J., and Carlisle, J., concur.