*1 February Rehearing 23, 1990 denied O’Neil, appel- Johnson, J. Brian R. Rogers, William Moore lant. Granade, appellee.
Gaines OF FLORIDA BANK NATIONAL ATLANTIC A89A1772. et al. v. CHANCE Presiding Judge. McMurray, Court Superior suit defendants brought Plaintiff Defend- County, Georgia, to domesticate Camden alia, asserting, inter liability, denied complaint and ants answered the lacked judgment which rendered the Florida court jurisdiction. thereof, plain- support In summary judgment.
Plaintiff moved plain- (1) judgment copies of tiff filed authenticated (2) 12, 1982; order en- an October tiff obtained defendants action; (3) an a default tering of the Florida demonstrating that of return of service affidavit of- County sheriff’s by Camden action was made answer the (4) fice; requiring defendants a summons judgment action. The Florida Waverly, Georgia address. defendants at a furnished to summary judgment plaintiff’s motion The trial court denied plaintiffs granted We review. ruling its for immediate and certified Held: interlocutory appeal. application for an Mills, 176 Ga. Covering v. In Toledo Center &c. ‘“ upon a in this State In a suit we stated: State, it in a sister rendered of a arising cause of action out record copy of the allege prove or an authenticated is not by alleging is made facie case proceedings, prima but a of the entire itself. copy of the authenticated proving properly (1924). Thus, Heakes, (Cits.)’ Heakes v. intro- required to but not case was authorized appellant the instant court. With Louisianá proceeding duce the entire record of the Court has Supreme our specific existence of regard to the State also held: ‘Where the lack (of proceedings) of the record appear does not on the face by the , . of such . . Heakes, Heakes v. supplied.) (Emphasis courts this State. Prosser, Co. v. Allied Fin. Compare at 863 813) (1961) (lack face of jurisdiction appearing creditor). pro- introduced As a record position, cases thus hold where properly authenticated the lack of introduced and face, out a on its made prima case which the suffer the facie defendant must then rebut or Rubin, *2 entry judgment against Minor v. Lillie of a domestication him. (65 Inc., App. (1951). 112 v. 84 See also Sullivan Ga. Gibbons, Inc., Douglas App. Ga. aff’d 187 recognize exception rule. “The cases one to this That when, on exception of exists face such evidence as is introduced creditor, appears it that was ‘(W)here against entered a nonresident of the forum state.
has every validity been entered in presumption favor of its must be This, course, indulged. includes the in inference that which the judgment jurisdictional authority was had entered neces- sary However, purpose. applicable (every) the rule is not case. “In suing state, on a judgment of a court of if the decla- ration, petition, or complaint rendering shows that it the court was a general jurisdiction, record or court of it is not aver terms parties that the court jurisdiction the sub- ject matter, or to set out the facts as this conferring jurisdiction, (But) be otherwise, until disproved. been held (in case) judg- where the shows that against ment was a nonresident.” (Emphasis supplied.) Hart- sog Robinson, v. App. 826-827 Lurey See v. S. also Jos. Cohen &c.
689) (1952).” Covering Mills, Toledo Center Carpet &c. v. Richfield Ga. supra.
In the case sub judice, lack of the face of the proceedings. record of the Florida record presents, however, least, very question at the of fact as whether the judgment was entered nonresidents of the State all, ida. After in Camden defendants were with County, Georgia and the that of the judgment in Waverly,. Georgia. sent to always
“The burden summary judgment, movant even as to such non-moving party might issues as the have the burden of proof at trial. Price v. B-Line Ga. Systems, 129 328) (1973); It necessarily attack follows that when collateral raised as a defense in judg- an action domestication of a ment, creditor, the plaintiff-judgment to meet his burden as order a successful movant to ne- summary required be judgment, would gate entry this defense. production The mere of the evidence evidence also it shows on its face that was nonresident, would not meet the movant’s burden. entered negate right underlying would the defendant’s Such evidence A at- pursue a collateral attack. not contest for lack whenever the defendant did tacked court, necessarily which circumstance issue would Co. Ramsey Winch v. judgment. case of a default See exist 848) (1980).” Co. Trust Covering Mills, Carpet &c. Toledo Center Richfield 400, 403, supra. judice Inasmuch as defendants in the case sub did not having the Florida court (judgment contest by default), they may col- appears entered them it been Covering Toledo Center &c. laterally attack Mills, Ameri- supra. Compare Van Buskirk v. Great County, can Bank Broward court, default, final after entering which the specifically parties. found it had of the J., J.,
Judgment Carley, Beasley, concurs. concurs affirmed. specially. Judge, concurring specially.
Beasley,
*3
dispute
1. The record shows without
that defendants
the
personal
yet
respond
ida action
the suit
failed to
as
oppo-
summoned. The
cannot
in wait and
their
lie
allow
a
challenge
original jurisdic-
nents to obtain
and
then
tion
when the
creditor
seeks to domesticate
opportunity
when the defendants have had a full and fair
to contest
By
in the
it is
denying jurisdiction
first suit.
not
when
properly alleged,
analogous
As
case of
they admit.
reasoned
(2) (196
212,
(1973),
Bynum,
Aiken v.
SE2d
[physical precedent
Buskirk v.
cited
reservation
Van
but
without
101,
Great American
SE2d
“[They]
appeared
had actual notice of the suit and could have
purpose
go
to
challenging [jurisdiction].
‘Allowing
limited
a case
to
case
allowing
is not better than
to be tried
”
princi-
before coming
merits
in with a technical defense.’ The same
ple
Buskirk,
“Ac-
applied
in Van
at 102. It also reiterated:
law,
cording
Georgia
to
. .
of lack of
. the defenses
insufficiency
has notice of
are waived where the defendant
appeared
challenge
suit and could have
Echols v.
but elects to do nothing
and suffers a default
315).”
Dyches,
Green Acres Discount v.
140 Ga.
SE2d
states
Appell,
Freid
135 Ga.
succinctly:
subject
he is
party
personally
“When a
state and
courts of
Drake,
cannot
attack a
Drake v.
of such court.
(5) (1
573).”
Tandy Computer Leasing
2. In Georgia action, domestication creditor filed request for admission of authenticity July fact and of documents on 21, having July served it on 19. reply Defendants did not to the same days (a) (2) within 30 required by instead, as OCGA 9-11-36 § after the past, time had sought an extension not been ruled on. if Even requests admissions, these should be considered as see National Bank Merritt, Ga. v. 193) (1973), there is request no for admission of the Florida court’s jurisdiction over the the Florida suit. 1990. Dotson,
Eleanor R. for appellant.
J. Morgan, Robert appellees.
A89A2002. CITY OF COLLEGE PARK v. ATLANTIC AIRLINES,
SOUTHEASTERN INC.
Birdsong, Judge. (ASA) Airlines, Atlantic Southeastern sought Inc. a refund of license paid respective taxes amounts $19,307.75; $38,224.31; $65,685.21, City Park. College to the The trial court granted summary judgment to ASA for a refund of the