First National Bank v. Dukes , 138 Ga. 66 ( 1912 )

Beck, J.

(After stating the facts.) "We are of the opinion that the court properly held that the case should be dismissed, as jurisdiction of the defendants had never been obtained by valid service. There is no provision in our law for the issuance of second originals and of process directed to the sheriff of another county than that in which the suit was brought, under the facts shown in this record. It is true that the filing of the petition is the commencement of the suit, where service is afterwards duly perfected, the service then relating back to the time, of the filing of the petition. But in the present case service was never properly effected. If before the time of the service the defendants removed from the county of Liberty to Bryan county under circumstances which made this removal to Bryan county a change of their domicile to that county, then the suit could not proceed against them in Liberty county. For, in order to give the court of Liberty county jurisdiction, there should have been a suit pending against the defendants before their removal from the county; and in order to constitute a pending suit at law there must be the filing of a petition and service in pursuance thereof. “The filing of the petition is treated as the commencement of the suit only when followed by due and legal service.” Cox v. Strickland, 120 Ga. 104 (47 S. E. 912, 1 Ann. Cas. 870); Stallings v. Stallings, 127 Ga. 464 (56 S. E. 469, 9 L. R. A. (N. S.) 593). See, in this connection, the case of Varn v. Chapman, 137 Ga. 300 (73 S. E. 507). In the present case the filing of the suit was not followed by due and legal service. The only service effected upon the defendants was the service of a copy of a second original and process attached thereto, directed to the sheriff of Bryan county. There is no provision in law for the issuance of a second original under the facts which we have recited above. If the defendants’ removal to Bryan county was only temporary and did not effect a change of residence, then they continued to be residents of Liberty county, and service could have been perfected by the sheriff of Liberty county under the first original by leaving a copy of the petition and process at the defendants’ most notorious place of abode. If the defendants actually became domiciled in Bryan county before there was a pending suit (which is the case only where a petition is filed and that is followed by service), then the only remedy for the plaintiff was to bring its suit in Bryan county. We know of no authority for the issuance of second originals, except where there are two or .more defendants joined in the same action, and where one or more resides in the county where the suit is brought, and one or more of the defendants resides in another county.

It follows, from what we have said above, that the defendants in the case had never.been properly served; and the court did not err in dismissing the cause, as it does not appear that any motion was made for a continuance in order to have service properly perfected.

Judgment affirmed.

All-the Justices concur.