Barwick v. American Manufacturing Co.

27 Ga. App. 275 | Ga. Ct. App. | 1921

Bloodworth, J.

We will discuss only the matter ruled upon in the second headnote. J. W. Barwick had an attachment issued against the American Manufacturing Company, “a foreign corporation and resident out of the State of Georgia.” The attachment was levied by serving a summons of garnishment. A declaration in attachment was filed, and at the first term the defendant filed a plea to the jurisdiction of the person and one the merits. At a subsequent term the ease was tried on its merits, no reference whatever being made to the jurisdiction. At that trial a verdict for the plaintiff was rendered. The defendant made a motion for a new trial, which was granted. When the case was called for the second trial the defendant offered to amend the plea to the jurisdiction, by adding thereto a verification, and by stating additional reasons why the court had no jurisdiction of the person of the defendant. The trial judge allowed the amendment, over the objection of the plaintiff,. and then refused to strike the amended plea, and the plaintiff excepted.

That the defendant, by not insisting upon his plea to the jurisdiction at the first trial, waived all rights he had at that trial under this plea is self-evident. Civil Code (1910), § 5664. In Macon & Birmingham Railroad Co. v. Gibson, 85 Ga. 2 (8) (11 S. E. 442, 21 Am. St. R. 135), it was said: “Nothing appears to show that the judge erred in entertaining jurisdiction of the cause. Any objection founded on the non-residence of the principal defendants, in the county, could be waived and was waived if these defendants answered without raising and urging that objection.” (Italics ours.) The real question now to be determined is whether or not this waiver extended to the second trial. This seems never to have been passed upon by the appellate courts of this State. In Stevens v. Lee, 70 Texas, 279, Judge Acker said: “ On a former trial Mrs. Stevens interposed a plea in abatement to the cross-bill of appellee, which plea was also interposed by appellants on the last trial. It appears from the opinions, as well as the record on the former appeal, that the court did not act on the plea in abatement at the first trial. On the last trial the court overruled the plea, and this ruling is complained of as error. . . The failure of Mrs. Stevens to have the court act upon the plea in abatement on the first trial was an abandonment or waiver of the plea, and appellants could not afterwards renew it.” Accepting the above ruling as a precedent, we are constrained to hold that the waiver of the plea to the jurisdiction at the first trial amounted to an abandonment of this plea, and the court erred in allowing it to be amended and in refusing to strike it after it was amended.

Judgment reversed.

Broyles, C. J., concurs. Luke, J., disqualified.