Redd v. Stephens , 48 Ga. App. 515 ( 1934 )

Stephens, J.

1. When service of legal proceedings is required to be made upon a person in order that he may be made a party thereto, he may become a party by acknowledging service, or by waiving all the requirements essential to service.

2. Where, after the rendition of a verdict and judgment for the defendants in a suit against two defendants, the required service to make the defendants parties to the motion for a new trial has been perfected upon only one of the defendants, and where, when the motion is called on the day set for a hearing, the defendant who was properly served moves to dismiss the motion for lack of necessary parties by reason of the failure of service upon the other defendant, an acknowledgment of service of the motion for a new trial and amendments thereto and orders issued on the original motion, which necessarily included the rule nisi and the brief of evidence, and a waiver of “all other notice and service in connection therewith, including time and place of hearing,” although made after the date originally set for a hearing on the motion, but made and notice thereof given to the other defendant at least six days before the date to which a hearing on the motion for á new trial had been continued, it does not appear that the acknowledgement of service and waivers were not made within ample time to enable the other defendant, making the motion to dismiss, to make preparation to resist the motion for a new trial. Gould v. Johnston, 123 Ga. 765 (51 S. E. 608) ; Connor v. State, 7 Ga. App. 83 (66 S. E. 482).

3. Both defendants were made parties to the plaintiff’s motion for a new trial, and the motion to dismiss the motion for a new trial, made by one of the defendants upon the ground of a lack of necessary parties respondent because of a failure to make the other defendant a party respondent, was without merit, and the court erred in sustaining the motion to dismiss the motion for a new trial.

Judgment reversed.

Jenkins, P. J., and Sutton, J., concur.