Opinion
40094.
DECIDED MAY 14, 1963.
Action for damages. Bacon Superior Court. Before Judge Hodges.
Ewing Hutto, Marshall Ewing, Deen Jacques, Braswell Deen, Jr., for plaintiffs in error.
T. J. Townsend, Barrie L. Jones, Sumner Boatright, J. Laddie Boatright, contra.
1. Valid service of a bill of exceptions is not perfected by the mailing of a copy of the certified and approved bill to counsel for the defendant in error.
2. The entry of service or certificate or affidavit of service can not be amended, and a determination of whether there has been a valid service is to be made from an examination of the entry, certificate or affidavit as it comes to this court attached to the bill of exceptions. An acknowledgment, if properly entitled, need not be physically attached. Code § 6-912.
DECIDED MAY 14, 1963.
After verdict in Bacon Superior Court for the plaintiff in a negligence action, the defendant presented and had duly certified by the trial judge a bill of exceptions assigning error upon the judgment overruling a motion for judgment non obstante veredicto.
The certificate of service on the bill of exceptions reads: "I, Marshall Ewing, of counsel for plaintiffs in error in the within and foregoing styled action, hereby certify that I have this day served the defendant in error with the foregoing bill of exceptions, certified and approved by Honorable Ben Hodges, Judge of the Superior Court of Bacon County, Georgia, by mailing a true and correct copy thereof, as certified, to each, Messrs. Summer and Boatright, Attorneys at Law, Alma, Douglas, Georgia; Mr. T. J. Townsend, Attorney at Law, Alma, Georgia; and Mr. Barrie L. Jones, Attorney at Law, Alma, Georgia, by U.S. mail under proper cover of postage. This the 20th day of February, 1963. (Signed) Marshall Ewing." (Emphasis added).
The defendant in error (plaintiff in the trial court) filed a motion to dismiss the bill of exceptions on the ground that there had been no valid or sufficient service in the manner provided by law, and no waiver or acknowledgment thereof.
Plaintiffs in error (defendants below) seek to amend their certificate of service by adding the following: "Further, I, Marshall Ewing, of counsel for plaintiffs in error in the within and foregoing styled case, hereby certify that on the 20th day of December, 1962, in my office at Douglas, Coffee County, Georgia, I did tender to J. Laddie Boatright, of counsel of record for defendant in error, the brief of evidence in subject case. Whereupon, the said J. Laddie Boatright did then and there refuse service of said brief of evidence and did state to me that counsel for defendant in error would not accept or acknowledge service of the brief of evidence, nor of any other pleadings, motions or documents in said case. Further, I certify that a true and correct copy of the bill of exceptions in this case was mailed to each of counsel for defendant in error by U.S. certified mail, on the 20th day of February, 1963, and was on the 21st day of February, 1963, in due course of U.S. mail and within the time prescribed by law for service thereof, received, signed for and service thereof acknowledged, by each of counsel for defendant in error, namely, Boatright and Sumner, by J. Laddie Boatright; T. J. Townsend, by himself; and, Barrie L. Jones, by himself, as evidenced by Exhibit A, Exhibit B, and Exhibit C, respectively, hereto annexed, which by reference are made a part hereof, and that the mail signed for, as aforesaid, did in each instance, contain a true, complete and accurate copy of said certified and approved bill of exceptions. Thereby, service and acknowledgment of service of the certified and approved bill of exceptions was waived and acknowledged by defendant in error." (Emphasis added). The three exhibits are the return receipts obtained by the postal authorities upon delivery of the certified mailings showing delivery thereof to, and being signed by Summer and Boatright, by J. Laddie Boatright, by T. J. Townsend, and by Barrie L. Jones.
1. The provisions for perfecting service of a bill of exceptions upon the defendant in error are to be found in Code Ann. § 6-911. Except in the two instances mentioned in the Code section the service must be personal. South Side Atlanta Bank v. Anderson, 200 Ga. 322 (2) ( 37 S.E.2d 404) and citations. Service by mail, therefore, has been held insufficient in an unbroken line of cases both in the Supreme Court and this court since Clark v. Lyon, 48 Ga. 125 (1873). See, e.g., Nicholson v. Balkcom, 217 Ga. 206 ( 121 S.E.2d 648); Charles E. Stewart Sons, Inc. v. Stewart, 217 Ga. 287 ( 122 S.E.2d 85); Feldman v. Benson, 90 Ga. App. 824 ( 84 S.E.2d 710). Nor will the fact that the mailing was by certified or registered mail afford validity to the attempted service. Cox v. Bibb Mfg. Co., 45 Ga. App. 158 ( 164 S.E. 97); State Mutual Ins. Co. v. Clement, 93 Ga. App. 215 ( 91 S.E.2d 200). See E.G.L. 139, Appeals, § 133. Even when counsel for the defendant in error admit having received the mailed copy, valid service is not shown. Clark v. Lyon, 48 Ga. 125, supra; Ginn v. Ginn, 202 Ga. 292 (2) ( 42 S.E.2d 923).
The two instances are (a) when the State is the defendant in error, and (b) when the defendant in error resides out of the county where the bill of exceptions is sued out and the bill of exceptions cannot be served personally upon his attorney by reason of his absence from the county of his residence. In the second instance service may be perfected by leaving a copy at the attorney's residence. If there is a nonresident defendant in error who is not represented by counsel service may be perfected by having the clerk of the court mail him a copy. Bodenheimer v. Fulton Nat. Bank, 205 Ga. 829 (2) ( 55 S.E.2d 357). Doubtless if the nonresident has counsel who is a nonresident of the State service might be similarly perfected.
The strictness with which this and other appellate procedure statutes have been construed is explained by the common law theory that "review of lower court judgments by a superior court was considered the bringing of a new suit, rather than continuation of an old one, . . . [and] like any other original action at law, the allegations of the declaration or petition must be formulated with the utmost precision, and secondly, that service must be perfected subject to all the technical safeguards attendant upon process and service in original proceedings." Leverett, Hall Christopher, Ga. Procedure Practice § 23-17, pp. 564-5 (citations omitted). The remedial amendment to Code Ann. § 6-911 found in Ga. L. 1953, Nov. Sess., p. 456, is an attempt to treat one of the results rather than to discard the theory itself to reach beneficial results.
Implicit in the Federal Rules is the continuing case as opposed to the new case theory.
Counsel for plaintiff in error earnestly insists that since Mr. Boatright refused to acknowledge service of the brief of evidence and at the same time stated that there would be no acknowledgment or acceptance of service of "any other pleadings, motions or documents in said case" a tender of the bill of exceptions would have been as useless as going to a goat's house for wool or shearing swine for fleece, and that since the mode of service is not prescribed in Code Ann. § 6-911, we ought to adopt and approve the practice generally recognized in other jurisdictions as being consonant with the needs of modern methods, times and practice, as stated in 4 Am. Jur. 2d 894, Appeal and Error, § 441: "When no mode of service is prescribed by statute, it is sufficient if the case made was actually received by the opposite party or his attorney within the required time, and the mode of service is immaterial."
"[T]he law does not require vain and useless procedure. . ." Mutual Benefit Health c. Assn. v. Hickman, 100 Ga. App. 348, 368 ( 111 S.E.2d 380); Reserve Ins. Co. v. Campbell, 107 Ga. App. 311, 313 ( 130 S.E.2d 236); Johnson v. State, 215 Ga. 839, 840 ( 114 S.E.2d 35).
This rule, though practical and sensible, is inconsistent with the common-law concept of our appellate procedure. It could not be recognized or employed save by the adoption of a procedure as outlined in the Federal Rules or their equivalent. We are bound by the interpretations of Code Ann. § 6-911 heretofore made, requiring personal service, some of which we have cited above. Under these cases no valid service can be perfected unless the statute is faithfully followed.
See Rule 73 (b) of the Federal Rules of Civil Procedure and Rule 37 of the Federal Rules of Criminal Procedure.
Even personal service by the secretary of the attorney for plaintiff in error will not suffice, Smith v. Georgia Power Co., 94 Ga. App. 164 (1) ( 94 S.E.2d 97), nor can it be done by delivering a copy to the secretary of the attorney for defendant in error, Stovall v. Ledbetter, 99 Ga. App. 400 ( 108 S.E.2d 719), or by leaving a copy at the office of the attorney. South Side Atlanta Bank v. Anderson, 200 Ga. 322 (4), supra; Cohen v. Blum, 17 Ga. App. 737 ( 88 S.E. 409). Where service is made by leaving a copy at the residence of the attorney for defendant in error it must affirmatively appear that the defendant in error is a nonresident of the county. Bank of Southwestern Ga. v. Tillman, 94 Ga. 731 ( 20 S.E. 4); Sanders v. Sanders, 163 Ga. 770 ( 137 S.E. 15); Connell v. Waddell, 26 Ga. App. 307 ( 106 S.E. 20). The act of 1953 amending Code Ann. § 6-911 so as to permit service to be shown by the unverified certificate of counsel did not have the effect of authorizing service by mail. Atlanta Newspapers, Inc. v. Watts, 92 Ga. App. 843 (2) ( 90 S.E.2d 52). Certification of personal service by the plaintiff in error pro se is held insufficient. Goodman v. Balkcom, 217 Ga. 169 ( 121 S.E.2d 646).
2. The entry of service or certificate of service cannot be amended. Ginn v. Ginn, 202 Ga. 292 (1), supra; Thomas v. Macken, 37 Ga. App. 624 ( 141 S.E. 316). Thus the determination of whether there has been a valid service must be made upon an examination of the entry or the certificate attached to the bill of exceptions as it comes to this court.
The strictness of this principle is illustrated in Peoples Loan c. Corp. v. Cy. Owens, Inc., 102 Ga. App. 628 ( 117 S.E.2d 188) where the bill of exceptions was dismissed because the certificate of service was unsigned although otherwise proper. The record in this court shows that the attorney for plaintiff in error offered an affidavit that the service was personal and that the certificate was left unsigned "through inadvertence and oversight," but the affidavit was not considered and did not avoid the dismissal.
But assuming that the certificate was amendable, the proffered amendment here would not show a valid service.
While it may be questioned that the refusal of counsel to acknowledge service on the brief of the evidence coupled with his statement that there would be no acknowledgment or waiver as to "any other pleading, motions or documents in said case" amounts to a refusal to waive or acknowledge service on the bill of exceptions, which was not at that time in existence, yet if it be assumed that this did amount to a refusal by Mr. Boatright, the result is not so Draconian as is urged, for there were left ample methods and means of perfecting service within the requirements of the statute. It was not a refusal by the other attorneys who represented the defendant in error (two in number), and a waiver or acknowledgment might have been obtained from either of them. If they should join in Mr. Boatright's refusal to waive or acknowledge, service might have been perfected without the waiver or acknowledgment by delivery of a copy to either of them in person. If that could not, for any reason, be accomplished, a waiver or acknowledgment might have been obtained from the defendant in error herself, or service might have been perfected by delivering to her a copy of the bill of exceptions. And if counsel for the plaintiff in error could not do it himself, he could have had personal service perfected on either of counsel or upon the defendant in error at the hands of the sheriff, who is empowered and whose duty it is to serve any process, writ, order or court paper requiring service when a copy is delivered to him for that purpose. Edwards v. United Food Brokers, Inc., 195 Ga. 1, 5 (1b) ( 22 S.E.2d 812). A bailiff may do it. State Hwy. Dept. v. Stewart, 104 Ga. App. 178, 179 ( 121 S.E.2d 278).
The statute does not require that there be service of the bill of exceptions on all of the attorneys who may have represented the defendant in error. It is sufficient if service is made on an attorney who procured the judgment, order or decree excepted to. Clark v. The Pigeon Roost Mining Co., 29 Ga. 29. Hence, if he had more than one attorney, service on only one of them is sufficient. Hulsey v. Atlanta Transit System, 214 Ga. 210 ( 104 S.E.2d 94).
In any event, valid service of the bill of exceptions, or due and legal waiver or acknowledgment thereof, is essential to give this court jurisdiction of the cause. Crane v. Balkcom, 217 Ga. 288 ( 122 S.E.2d 82). Since it does not appear here, we have no choice. The writ of error is
Dismissed. Felton, C. J., and Russell, J., concur.