Opinion
39669.
DECIDED OCTOBER 11, 1962. REHEARING DENIED OCTOBER 25, 1962.
Action for damages. Fulton Superior Court. Before Judge Dyer.
Bagwell Hames, Merritt Pruitt, James A. Bagwell, for plaintiff in error.
Lucio L. Russo, Allen J. Hamner, contra.
Where proper process was issued and served upon the defendant pursuant to a petition praying "that service of process be perfected upon said defendant . . . and that he be and appear as provided by law to answer this complaint," there was a valid, though not perfect, prayer for process.
DECIDED OCTOBER 11, 1962 — REHEARING DENIED OCTOBER 25, 1962.
Plaintiff's action was to recover for personal injuries sustained as a result of an automobile collision. The petition prayed "that service of process be perfected upon said defendant Kelly B. Heffner and that he be and appear as provided by law to answer this complaint." The defendant was duly served on the day after the filing of the petition but filed no defensive pleadings, and on April 4, 1962, verdict and judgment were rendered against him in the amount of $5,000. On May 14, 1962, the defendant filed a motion to vacate the verdict and reinstate the case. This motion, as amended, after hearing, was denied, to which ruling the defendant excepted.
The only question to be decided here is whether the plaintiff's petition contains a sufficient prayer for process. The defendant's highly technical argument is that because there was no express prayer for the issuance of process, the process was issued without authority and was, therefore, void.
Process has been defined as the means whereby a court compels the appearance of the defendant before it or a compliance with its demands. It is necessary in order to give the court jurisdiction of the proceedings brought against the defendant. Neal-Millard Co. v. Owens, 115 Ga. 959, 961 ( 42 S.E. 266). The only purpose of process is to give the party proper notice of the proceedings and when his appearance will be required, and where that is done, the process has served its purpose. Gay v. Sylvania Central Railway Co., 79 Ga. App. 362 (1), 366 ( 53 S.E.2d 713). Furthermore, no technical or formal objections shall be held to invalidate process, and if it conforms substantially to the requirements of the statute and the defendant has notice of the pendency of the cause, it is adequate. Code § 81-220. We feel the same principle should apply to the prayer for process which should not be vitiated by such objections. "No technical or formal objections shall invalidate any petition; but if the same shall substantially conform to the requirements of this Code, and the defendant has had notice of the pendency of the cause, all other objections shall be disregarded, provided a legal cause of action . . . is set forth." Code § 81-114.
In the present case process was not only issued but was duly served upon the defendant. While the prayer of the petition did not literally call for process to be issued, it did ask that service of process be perfected upon the defendant. This, we feel, necessarily included a request for process to be issued. How could it be served upon the defendant if it were not issued? How could it be "perfected" (as prayed) if it were never issued?
While the prayer as to process was not perfect, it was adequate and within the spirit and the purpose of the law. The prayer in the present petition, we think, necessarily included a prayer that process be issued.
The trial court properly denied the motion to vacate the judgment.
Judgment affirmed. Felton, C. J., and Hall, J., concur.