O.C.G.A. § 15-16-16 (2019)
Entries and returns nunc pro tunc
If the sheriff or other executing officer fails to make an official return which by law he should have made, the entry or return may be made nunc pro tunc by order of the court, so as to make the proceedings conform to the facts at the time the entry should have been made.
History
(Orig. Code 1863, § 3427; Code 1868, § 3447; Code 1873, § 3498; Code 1882, § 3498; Civil Code 1895, § 5117; Civil Code 1910, § 5701; Code 1933, § 24-2816.)
Annotations
JUDICIAL DECISIONS
"By order of the court" defined. - Phrase "by order of the court" means "by command" or "by direction." Aetna Cas. & Sur. Co. v. Sampley, 108 Ga. App. 617, 134 S.E.2d 71 (1963).
Voluntary amendment of records and entries. - When the officer is willing to make the officer's records and entries truthful and in accordance with the facts, and does so voluntarily, this section does not require the officer or the plaintiff to seek from the court an order commanding or directing that it be done. Aetna Cas. & Sur. Co. v. Sampley, 108 Ga. App. 617, 134 S.E.2d 71 (1963).
Return is not jurisdictional. - Process and service are essential, but the return, being only evidence of what the officer has done in serving the writ, is not jurisdictional. Nelson v. Lovett, 104 Ga. App. 770, 123 S.E.2d 4 (1961).
Court may make entry if no return of service. - If there has been no return of service whatever, but evidence can be adduced to show that the defendant has in fact been served, a return of service may be made on motion by an entry on the process nunc pro tunc. Nelson v. Lovett, 104 Ga. App. 770, 123 S.E.2d 4 (1961).
Court may make entry after sheriff out of office. - Even after the sheriff has gone out of office, such nunc pro tunc entry may be made upon proper order of the court. Nelson v. Lovett, 104 Ga. App. 770, 123 S.E.2d 4 (1961).
Dormancy of judgment will not be prevented by nunc pro tunc entry of levy made at a time when the judgment was not dormant. Lewis v. Smith, 99 Ga. 603, 27 S.E. 162 (1896).
Valid amendment nine years after return. - Order nunc pro tunc by an ordinary (now probate judge) nine years after the return of commissioner's setting apart a year's support for a widow was valid. Vaughn v. Fitzgerald, 112 Ga. 517, 37 S.E. 752 (1900).
Cited in Freeman v. Stedham, 34 Ga. App. 143, 128 S.E. 702 (1925); Raw Properties, Inc. v. Lawson, 335 Ga. App. 802, 783 S.E.2d 161 (2016).
RESEARCH REFERENCES
ALR. - Execution: effect of return made after return day, 2 A.L.R. 181.