60 Ga. App. 531 | Ga. Ct. App. | 1939
Clyde Casey brought an action, in Fulton County, Georgia, against A. H. Cooledge, on a judgment reviving a dormant judgment rendered in the State of Alabama. The court sustained a general demurrer to the petition as amended, and the plaintiff excepted. The original petition substantially alleges: 1. The defendant is a resident of Fulton County, Georgia. 2. On February 24, 1925, a jury in the Jefferson County circuit court of the tenth judicial circuit of Alabama rendered a verdict against A. H. Cooledge and H. M. Mauck for $3000 and costs, and the court entered a judgment on that verdict; a duly-authenticated and exemplified copy of said judgment being attached to the petition as exhibit A. 3. On April 1, 1936, plaintiff filed in the
In order to reach a proper understanding of the question for decision in this case, whether the court erred in sustaining the general demurrer to the petition as amended, it is necessary to consider the ruling of this court, made in Cooledge v. Casey, 58 Ga. App. 134 (198 S. E. 96), that the court “erred in overruling the general demurrer to the [original] petition.” In rendering that decision this court said: “This is a suit on a revived judgment. If the petition had simply alleged the rendition of the judgment, it would not have been subject to general demurrer. It did not stop with that, but set forth the entire proceedings upon which the judgment was based. The judgment roll attached to the petition shows: (1) that the defendant was a. non-resident of Alabama; (2) that the notice, the only service in the case, was by mail; (3) that a motion to quash the service was first filed; (4) that later, other special pleas and a general answer were filed; that the court in Alabama rendered a final judgment without specifically ruling on the motion to quash. Unless the defendant waived the lacle of jurisdiction of his person, the judgment of revival is void. Owens v. Henry, 161 U. S. 642 (16 Sup. Ct. 693, 40 L. ed. 837). [Italics ours.] One of three things occurred. The Alabama court impliedly ruled against the motion to quash, by ruling on the merits and reviving the judgment; or it ignored it over the protest of the defendant; or the parties went to trial on the merits without call; ing the court’s attention to the motion to quash, the effect of which
Before the remittitur from this court was made the judgment of the trial court, Casey amended his original petition by adding thereto, paragraphs 8, 9, 10, and 11, the substance of which appears from the following statement: “8. Plaintiff shows that there was attached to his original petition . . , as exhibit A thereto, a duly-authenticated and exemplified copy of all proceedings and the judgment roll in the Jefferson County circuit court of the tenth judicial circuit of Alabama, out of which issued the
It appears from the copy of the minute entry attached to the amendment to the petition in the instant case that the judge of the circuit court of Alabama rendered the following judgment on Cooledge’s motion to quash: “On this 5th day of June, 1936, came the parties by their attorneys, and defendants file motion to quash service of scire facias and said motion is by the court heard and considered, whereupon, it is ordered and adjudged by the court that said motion be and the same is hereby denied, and defendants except and defendants allowed 30 days within which to plead further.” Subsequently, the defendants did “plead further” by filing pleas and a general answer. The case of Casey v. Cooledge, supra, decided June 14, 1937, was an appeal by Casey from the judgment denying his motion to revive the former judgment procured by him against Cooledge. In that case the Alabama Supreme Court prefaced its decision by this general statement: “The parties waived
Our view is that the petition as amended shows that Cooledge waived lack of jurisdiction of his person by the Alabama court by failing io seek a review of the judgment overruling Ms motion to quash the proceeding io revive the judgment agamst him. In Hass-Phillips Produce Co. v. Lee, 205 Ala. 137 (87 So. 200), the decision is prefaced with this statement: “Action by Lee & Edwards against the Hass-Phillips Produce Company, a domestic corporation, on a judgment recovered in 1916 in a circuit court of general jurisdiction in the State of Florida. Judgment for the plaintiffs, and the defendant appeals. The defense set up is that the Florida court did not have jurisdiction of defendant corporation at the time of the rendition of the judgment, and that therefore the judgment is void even on collateral attack. The cause was tried without a jury by the court upon the following agreed statement of facts:” It appears from this statement of facts that “HassPhillips Produce Company entered a special appearance in said suit, solely for the purpose of objecting to the jurisdiction of said court for want of proper service, and filed a special plea for the purpose, and solely for the purpose, of objecting to the jurisdiction of said court on the ground that proper service had not been had;” that the “circuit court of Hillsborough County, on motion of the plaintiffs, held the special plea to the jurisdiction bad, as a matter of law, the facts alleged in said plea not being denied, and further held that the said service . . was sufficient, and the said circuit court of Hillsborough County had thereby acquired jurisdiction of the defendant corporation; that thereupon the said defendant then appeared generally and pleaded to the merits in said cause;” and “that, upon a hearing of the evidence on the merits in said cause, the jury returned a verdict for the plaintiffs” for damages. The Alabama Supreme Court held: “Under the agreed
In the instant case, Cooledge submitted the jurisdictional question to the Alabama court by filing his motion to quash for lack of personal service on him, and that court overruled his motion. Subsequently he filed pleas and a general answer and contested the
Judgment reversed.