Opinion
22135.
ARGUED SEPTEMBER 9, 1963.
DECIDED OCTOBER 10, 1963.
Equitable petition. Bulloch Superior Court. Before Judge Usher.
Robert S. Lanier, Neville Neville, W. G. Neville, for plaintiff in error.
Allen Edenfield, contra.
1. A general appearance by answering a petition waives all irregularities in the service of process.
2. The judgment and order to abate the nuisance follow the petition and are not too vague and indefinite for enforcement.
3. The words "justices of the peace" as used in Code § 72-201 include ex officio justices of the peace as defined by Code § 24-501, 24-502, and 24-503.
4. After having consented to the substitution of one justice of the peace for another to serve on the trial of a case, a party will not be permitted to object thereto.
ARGUED SEPTEMBER 9, 1963 — DECIDED OCTOBER 10, 1963.
A judgment that plaintiff's petition fails to state a cause of action is assigned as error. W. P. Clifton filed in justice court his petition seeking abatement of a public nuisance. In substance, the petition alleges that W. A. Hagins erected a fence across a public road which traverses property of Clifton and Hagins and that the fence causes immediate annoyance to citizens in general and special injuries to plaintiff and his property because it blocks the road. Hagins answered Clifton's suit. Upon a jury verdict finding the fence to be a public nuisance specially injurious to Clifton the two presiding justices entered a judgment that the nuisance be abated. They passed an order directing the sheriff to remove the fence. Thereafter, Hagins filed his petition in the superior court against Clifton and Harold Howell, Sheriff, seeking to have the judgment and order of the justices declared void and removed as a cloud upon his title and seeking temporary and permanent injunction against enforcement of the judgment and order by Clifton and Howell. The judgment of the superior court that Hagins' petition does not state a cause of action and denying the relief sought is assigned as error.
1. Hagins seeks by this suit in equity to collaterally attack the judgment and order of the justice court upon four grounds, each ground alleged to be sufficient to render the judgment and order void. First, he alleges that Code § 72-201, under which the proceeding in the justice court was brought, required Clifton's petition to the justices to be served by a constable whereas it was served by a deputy sheriff and that this renders the judgment and order of the justices void. We notice in passing that Code § 72-201 nowhere refers to service of process by a constable, that Code § 24-817 provides that constables shall serve processes of justice courts, and that Code § 24-2818 provides that sheriffs or their deputies may serve justice court processes, but we do not dispose of this ground upon that basis. "Appearance and pleading shall be a waiver of all irregularities of the process, or of the absence of process, and the service thereof." Code § 81-209. When Hagins appeared and answered Clifton's petition in the justice court and then and there failed to raise the question of service, he waived all irregularities in the service, if any. Bigbee v. Hutcheson, 99 Ga. 398 (1) ( 27 S.E. 732).
2. Hagins' petition next asserts that the judgment and order of the justices are void because they do not follow the pleadings and are too vague and indefinite for enforcement. The petition of Clifton filed in the justice court alleges that he and Hagins own adjacent farms in the 48th G. M. District of Bulloch County, Ga.; that a branch of a public road known as the Oliver-Halcyondale Road traverses the two farms; that Hagins erected a fence across the road in two locations, blocking its use. The judgment of the justice court refers to the case in which it was rendered and orders that the nuisance therein complained of be abated and suppressed. The order to abate the nuisance directed to the Sheriff of Bulloch County, Ga., refers to the case, the verdict and judgment therein, and directs the removal of the fence maintained by Hagins on Oliver-Halcyondale Road in the 48th G. M. District of Bulloch County, Ga. The judgment and order follow the petition, see Bentley v. Still, 198 Ga. 743 ( 32 S.E.2d 814), and are not too vague and indefinite for enforcement. See Barnes v. Cheek, 84 Ga. App. 653, 655-56 ( 67 S.E.2d 145).
3. Hagins' petition also alleges that the judgment and order of the justices are void because Code § 72-201, under which the abatement proceeding was brought by Clifton, required the judgment and order to be signed by "any two or more justices of the peace of the county," whereas the judgment and order were signed by one justice of the peace and one notary public ex officio justice of the peace rather than by two justices of the peace. This ground is manifestly without merit. Code § 72-201 must be read in conjunction with Code § 24-501, 24-502, and 24-503 such that ex officio justices of the peace as defined by the latter sections are included within the term "justices of the peace" as used in the former section.
4. The remaining ground of attack is also wholly lacking in merit. Hagins insists that the judgment and order are void because cause Clifton's petition was addressed to two named justices of the peace whereas the judgment and order were signed by one of those two justices and another justice to whom the petition was not addressed and there was no order substituting the justice who served for the justice who did not serve. The case was tried before the two justices without any objection from either party. Having thus consented to the substitution of the one justice for the other, Hagins will not thereafter be permitted to object thereto. Vaughn v. Strickland, 108 Ga. 659, 660 (2) ( 34 S.E. 192).
Judgment affirmed. All the Justices concur.