McCalla v

Nichols, 102 Ga. 28, 28 S.E. 988, 1897 Ga. LEXIS 443 (1897). The action fails, where there is a total absence of a rule nisi in a mortgage foreclosure, and the mere filing of the petition will not suffice to authorize the action to be treated as commenced and pending. York v. Edwards, 52 Ga. App. 388, 183 S.E. 339, 1936 Ga. App. LEXIS 646 (1936). Effect of waiver of statutory requirements. — Waivers by the defendant of statutory requirements, of O.C.G.A. §§ 44-14-180 and 44-14-181, and consents that the rules nisi and absolute may be issued and the mortgage finally foreclosed at the first term, do not bind third persons, nor confer such jurisdiction on the court as will authorize it to render a final judgment of foreclosure at the first term. As to third persons such a judgment is void. Smith v. First Nat’l Bank, 143 Ga. 44-14-180 543, 85 S.E. 696, 1915 Ga. LEXIS 513 (1915). A petition, under O.C.G.A. § 44-14180 is a pleading and may be amended as a pleading. Ledbetter v. McWilliams, 90 Ga. 43, 15 S.E. 634, 1892 Ga. LEXIS 119 (1892). Foreclosure as action within statute of limitations. George v. Gardner, 49 Ga. 441, 1873 Ga. LEXIS 397 (1873). In seeking to foreclose a mortgage which on its face appears to be barred by the statute of limitations, where the desire is to avoid the bar by reason of a new promise of partial payment, such relieving facts must be alleged with sufficient certainty under O.C.G.A. § 44-14-180 to enable the defendant to meet the same by plea as well as proof. Jesup v. Epping, 66 Ga. 334, 1881 Ga. LEXIS 16 (1881). Proceedings were not barred by the limitations statute. York v. Edwards, 52 Ga. App. 388, 183 S.E. 339, 1936 Ga. App. LEXIS 646 (1936). Pendency of proceedings no hindrance to other actions. — The pendency of proceedings to foreclose a mortgage under O.C.G.A. § 44-14-180, is no hindrance to a regular action upon the notes to secure which the mortgage was given. Juchter v. Boehm, Bendheim & Co., 63 Ga. 71, 1879 Ga. LEXIS 122 (1879). Lack of title in mortgagor. — Where the mortgagor of land has no title to it, but only a bargain for it, with part payment of the purchase money, the mortgagee cannot have the aid of a court of equity to foreclose the mortgage as against the holder of the title, without offering to pay the remainder of the purchase money. Crummey v. Mechanics’ & Sav. Bank, 30 Ga. 670, 1860 Ga. LEXIS 167 (1860). Debt not due at commencement of terms. — Although, when the term commenced at which the rule nisi to foreclose was taken, the debt, to secure which the mortgage was given, was not due, yet if, when the petition and rule nisi were represented, the debt had matured and the rule nisi was served on the defendant more than three months (now 30 days) before the next term, at which the money due on the mortgage was required to be paid; this is all that the mortgagee was 592 44-14-180 MORTGAGES, SECURITY, LIENS entitled to under O.C.G.A. § 44-14-180. Hart v. Altmeyer & Co., 74 Ga. 367, 1884 Ga. LEXIS 393 (1884). The evidence in a claim case pending a fi. fa. on a mortgage was sufficient to show that a rule nisi and a rule absolute were granted. Redding v. Anderson, 144 Ga. 100, 86 S.E. 241, 1915 Ga. LEXIS 71 (1915). No appeal lies from a rule absolute awarded by the court for the foreclosure of a mortgage. Clifton v. Livor, 24 Ga. 91, 1858 Ga. LEXIS 162 (1858). For discussion of the effect on O.C.G.A. § 44-14-180 of certain laws not directly amending that section, see Swift v. Van Dyke, 98 Ga. 725, 26 S.E. 59, 1896 Ga. LEXIS 132 (1896). Service Process compared. — While the rule nisi signed by the judge differs from the process issued by the clerk in ordinary cases, in that there must be personal service or service by publication, and the leaving of a copy at the defendant’s residence is not sufficient, as well as differing in other respects, it is nevertheless in many respects analogous to regular process. York v. Edwards, 52 Ga. App. 388, 183 S.E. 339, 1936 Ga. App. LEXIS 646 (1936). Rule is only process. — In a statutory proceeding to foreclose a mortgage on realty, the only “process” that is necessary is the rule nisi prescribed by O.C.G.A. § 4414-180, and the only prayer for process that is necessary is a prayer for such a rule. Smith v. Downing Co., 21 Ga. App. 741, 95 S.E. 19, 1918 Ga. App. LEXIS 505 (1918). See also Montgomery v. King, 123 Ga. 14, 50 S.E. 963, 1905 Ga. LEXIS 360 (1905). Service by publications. — Where the plaintiff seeks a judgment in rem, and not a judgment in personam, service by publication, in accordance with the terms of O.C.G.A. § 44-14-180, is no less effective than personal service. Smith v. Downing Co., 21 Ga. App. 741, 95 S.E. 19, 1918 Ga. App. LEXIS 505 (1918). Leaving a copy at defendant’s residence. — In cases of foreclosure of mortgages, the service must be personal, or by publication under O.C.G.A. § 44-14-180. 44-14-180 Service by leaving a copy at the residence of the defendant is not sufficient. Dykes v. McClung, 74 Ga. 382, 1884 Ga. LEXIS 403 (1884); Hobby v. Bunch, 83 Ga. 1, 10 S.E. 113, 1889 Ga. LEXIS 1 (1889); Southern States Phosphate & Fertilizer Co. v. Clark, 149 Ga. 647, 101 S.E. 536, 1919 Ga. LEXIS 354 (1919). If the only service of the rule nisi to foreclose the mortgage under O.C.G.A. § 44-14-180, was by leaving copy at the most notorious place of abode of the defendant, and there was no personal service, this furnished a good ground of defense to the foreclosure. Meeks v. Johnson, 75 Ga. 629, 1885 Ga. LEXIS 190 (1885). The service of the rule on a trustee to foreclose mortgage on land, is sufficient under O.C.G.A. § 44-14-180; and the cestui que trust need not be made a party. Wood v. Nisbet, 20 Ga. 72, 1856 Ga. LEXIS 14 (1856). Service by an unofficial person is not legal under O.C.G.A. § 44-14-180. Falvey v. Jones, 80 Ga. 130, 4 S.E. 264, 1887 Ga. LEXIS 342 (1887); Hobby v. Bunch, 83 Ga. 1, 10 S.E. 113, 1889 Ga. LEXIS 1 (1889); Montgomery v. King, 123 Ga. 14, 50 S.E. 963, 1905 Ga. LEXIS 360 (1905); Southern States Phosphate & Fertilizer Co. v. Clark, 19 Ga. App. 376, 91 S.E. 573, 1917 Ga. App. LEXIS 125 (1917); Southern States Phosphate & Fertilizer Co. v. Clark, 149 Ga. 647, 101 S.E. 536, 1919 Ga. LEXIS 354 (1919). Where the entry of service is signed by one assuming to act as deputy sheriff, and an affidavit of illegality is interposed alleging that such person is not in fact a deputy sheriff, if both the sheriff and the person acting as deputy sheriff are not made parties to the traverse, there is no such attack upon the return as would justify a judgment setting it aside, and on motion such a ground of illegality should be dismissed. Southern States Phosphate & Fertilizer Co. v. Clark, 19 Ga. App. 376, 91 S.E. 573, 1917 Ga. App. LEXIS 125 (1917). Day of serving rule counted. — The day on which the rule nisi to foreclose a mortgage on land was served should be counted. English v. Ozburn, 59 Ga. 392, 1877 Ga. LEXIS 284 (1877). The return day in case of a foreclosure of a mortgage on real estate, under 593 Service (Cont’d) O.C.G.A. § 44-14-180, was the day to which the rule nisi was returnable. Swint v. Milner Banking Co., 30 Ga. App. 733, 119 S.E. 336, 1923 Ga. App. LEXIS 656 (1923). Late service returnable to next term. — Where a rule nisi upon a petition to foreclose was issued more than three months (now 30 days) before the next term of court, at which term the mortgagor was required to pay the money into court, and personal service of the rule nisi was effected prior to the term at which the payment was required to be made, but too late to be due service to that term, it would go over and become returnable to the next succeeding term. Vaughan v. F & M Bank, 145 Ga. 338, 89 S.E. 195, 1916 Ga. LEXIS 310 (1916). Where quarterly terms of the superior court in a particular county are provided for by law, and, a rule nisi on a petition to foreclose a mortgage on realty is granted at one term under O.C.G.A. § 44-14-180, and the first day of the next regular succeeding term will occur within less than three months (now 30 days) after the grant of the rule nisi, it should be made returnable to the first term thereafter for which lawful service can be had, or the next term but one. Southern States Phosphate & Fertilizer Co. v. Clark, 19 Ga. App. 376, 91 S.E. 573, 1917 Ga. App. LEXIS 125 (1917). As in the case of ordinary process served an insufficient length of time before the appearance term, which O.C.G.A. § 4414-180 makes good for the next succeeding term, a rule nisi issued upon a petition to foreclose a mortgage upon realty, service of which is made prior to the term at which the mortgagee is directed to pay the money into court, but too late to be due service for that term, goes over, and becomes returnable to the next succeeding term. York v. Edwards, 52 Ga. App. 388, 183 S.E. 339, 1936 Ga. App. LEXIS 646 (1936). Effect of defective service. — Where service of a rule nisi was acknowledged by the mortgagors four days before the rule absolute was granted by the court, and the judgment absolute recited that the mort- 44-14-180 gagors named had “acknowledged service on this rule nisi,” such defective service did not render the judgment absolute void, but voidable. Milltown Lumber Co. v. Blitch, 146 Ga. 253, 91 S.E. 62, 1916 Ga. LEXIS 694 (1916). In the service of a rule nisi issued by the judge in proceedings to foreclose an attorney’s lien on land, analogous to a rule nisi in mortgage foreclosure proceedings, the service of an ordinary copy instead of a certified copy of the rule nisi, especially when in effect so provided in the rule nisi, does not render the service and proceedings void. York v. Edwards, 52 Ga. App. 388, 183 S.E. 339, 1936 Ga. App. LEXIS 646 (1936). A recital of service under O.C.G.A. § 44-14-180, if silent as to the mode of service, is to be read in connection with the sheriff’s return. Hobby v. Bunch, 83 Ga. 1, 10 S.E. 113, 1889 Ga. LEXIS 1 (1889). Correction of irregularities. — Where valid process has been issued with an action setting out a cause of action, and there has been no sufficient service through no fault or laches of the plaintiff or plaintiff’s attorney, the judge may by order provide for the correction of any mere irregularity in the process or service; and after the perfection of service, even though subsequent to the return term, such service will relate to the date of the filing of the petition, which will be treated as the time of commencement of the action. York v. Edwards, 52 Ga. App. 388, 183 S.E. 339, 1936 Ga. App. LEXIS 646 (1936). Right of creditor of mortgagor to show improper service. — Where service was regularly returned as made upon a special agent of the mortgagor, a creditor of the mortgagor could not dispute the legality of the service by showing that the person served was not in fact a special agent, it not appearing that the mortgagor had repudiated the service. Flannery & Co. v. Baldwin Fertilizer Co., 94 Ga. 696, 21 S.E. 587, 1894 Ga. LEXIS 276 (1894). Attorneys’ liens. — A proceeding to foreclose an attorney’s lien upon real property is to be brought as is a proceeding to foreclose a mortgage upon land; the process is a rule nisi issued by the court, and 594 44-14-180 MORTGAGES, SECURITY, LIENS not a process issued by the clerk as in ordinary cases. Moss v. Strickland, 138 Ga. 539, 75 S.E. 622, 1912 Ga. LEXIS 604 (1912); York v. Edwards, 52 Ga. App. 388, 183 S.E. 339, 1936 Ga. App. LEXIS 646 (1936). Time of rendering judgment on attorney’s lien. — When a petition for foreclosure of an attorney’s lien was filed 44-14-180 in the superior court during a regular term thereof, under O.C.G.A. § 44-14180, and thereafter the defendant acknowledged due and legal service of such proceedings, the court had jurisdiction to render a judgment of foreclosure at its next succeeding term. Ray v. Hixon, 107 Ga. 768, 33 S.E. 692, 1899 Ga. LEXIS 149 (1899).