concurring specially. This case is an affidavit of illegality filed by J. D. Maddox to the levy of an execution by T. 0. Benton as transferee. In the original affidavit the defendant alleged "that since the last term of said court it has come to his notice that in said case that A. J. Walton, the sheriff of said county, made return of service on the petition in said case that he served this affiant with a copy of said petition and process on the -day of — .-, 1923; and affiant says that said return is untrue, and ho hereby traverses the same, and he prays the court to make said A. J. Walton, sheriff, a party to this case by proper order.” By amendment this allegation was stricken. The case proceeded to trial, and the jury returned a verdict in favor of the defendant. The plaintiff filed a motion for new trial, and excepted to the judgment overruling it. It appeared *137that the original papers in the case in which the execution issued were lost. The defendant introduced evidence that the writ book kept in the clerk’s office contained a copy of the petition and judgment, but disclosed no entry of service. He testified that he had never been served with a copy of the petition in the ease. The plaintiff introduced that part of the affidavit of illegality that was stricken by amendment; also evidence consisting of the records in other cases in the same book immediately before and immediately after the record in the present case, in which there appeared no record of returns of service, and evidence of the original papers in such cases which contained returns of service. A. J. Walton, the sheriff, testified substantially that he served the defendant.
Now the first question presented by the motion for new trial may be stated thus: Was the testimony of the defendant that he had not been served inadmissible for the reason that he filed no traverse of the entry of service and did not make the sheriff a party? This question should be answered in the negative. It seems to me that sufficient reason for this answer is that no entry of service appeared. If the defendant is required to file a traverse in such a case, he must admit an entry when none appears; and if there be some evidence that there was no entry, he must speculate whether the court will hold that there was an entry. “The entry of the sheriff . . may be traversed by the defendant at the first term after notice of such entry is had by him.” Code, § 81-214. In Dozier v. Lamb, 59 Ga. 461, Judge Bleckley, in holding that an entry is the chosen witness of the law and can not be contradicted, presupposed, as does the statute, the actual existence of the return.
In passing on a case similar to the one at bar, Pottle, J., in McLeod v. Bird, 14 Ga. App. 77, 79 (80 S. E. 207), said: “If the record is silent on the question, then the presumption in favor of the court’s judgment would give aid to the party obtaining the judgment, and the burden would be upon any one attacking the judgment to show that he was not served. If the record is lost, and therefore it can not be ascertained whether the court had in fact before it evidence of service, the person attacking the judgment would make out a prima facie case by showing that he had never in fact been served. It is not essential that he should go further and show that no entry of service had been made by any *138officer of the court competent to make service. The party claiming under the judgment could then reply by establishing a copy of the record showing a valid entry of service. If this be done, it would then be necessary for the party attacking the judgment to traverse this entry and make the officer a party, or the party claiming under the judgment might overcome a prima facie case made by the attacking party by showing either of two things: (1) He could do so by showing that there had been a valid entry of service and that the defendant in the judgment had notice of this entry at or before the preceding term of the court; or (2) he might defeat the defendant in the judgment by disproving the facts to which he had testified and showing that he had been actually legally served.” It is clear from this decision, as well as from the statute, that no traverse of a return of service is necessary, unless there does actually exist one upon the records. If, as there stated, the plaintiff had established a copy of the petition showing an entry of service, and formally introduced it in evidence, then the defendant would have had to file his traverse making the sheriff a party. Where this is not done, but the fact of the existence of an entry is merely disputed by evidence consisting of conflicting presumptions, the defendant is authorized to testify that he was not served, without filing a traverse or making the sheriff a party. In such a ease, that is, where the lost record is not established, the question whether there was an entry is not a controlling issue before the jury. This is true for this reason: suppose the jury should find that there was an entry, this would not be a finding, or equivalent in law to a finding, that the defendant had notice of the entry. The law requires a traverse by the defendant at the first term after notice. Therefore the mere finding by the jury that there was a return would not require a finding that the defendant, at that term and during that term, should have filed a traverse. In this case, since there was evidence of the existence of a return, and some evidence that the defendant knew of the return before the term of the court at which the case was tried, the judge should have submitted this issue to the jury and charged them that if there was a return and defendant knew of it, they should go no further, and find for the plaintiff. He therefore erred in restricting the issue merely to service or no service.