158 Ga. 768 | Ga. | 1924
(After stating the foregoing facts.) We are of the opinion that the court properly decided the case and adjudged the land to be subject. It is insisted by plaintiff in error, that the court from which the fi. fa. issued did not get jurisdiction of the defendant in fi. fa. in this case, so as to affect the rights of the claimant; that while a waiver upon the part of Waddell might estop him from asserting the invalidity of the fi. fa., it could not estop this claimant. And in support of this contention section 5663 of the Civil Code is appealed to. That section reads as follows: “Parties, by consent express or implied, cannot give jurisdiction to the court .as to the person or subject-matter of the suit. It may, however, be waived, so far as the rights of the parties are concerned, but not so as to prejudice third persons.” And it is insisted that the claimant in this case is a third person and protected by the provision in the statute quoted that the rights of third persons shall not be prejudiced. We are of the opinion that none of the rights of the claimant were prejudiced by the waiver made by Waddell which gave jurisdiction to the court issuing the fi. fa. That Waddell had any defense against the note is not suggested. Nor does a case like this fall within the ruling in any one of that class of cases where it was held that the waiver of jurisdiction prejudiced the rights of innocent third parties. In the case of Charles v. Pitts, 16 Ga. App. 617 (85 S. E. 939), it was said: “Jurisdiction being waived as to person and the subject-matter, as between the plaintiff and the defendant, a valid judgment was rendered. Thereafter the defendant himself could make no objection for lack of jurisdiction, and the claimant could not make an attack on the judgment except upon some ground which could at that time be urged by the defendant. 'A defendant who has had his day in court cannot go behind the judgment for the purpose of showing that it ought never to have been rendered, nor will a claimant be allowed any such right.' Ansley Co. v. O’Byrne, 120 Ga. 618, 620 (48 S. E. 228). The judgment in this case is not void as to the claimant, since no objection to it was made at the time of its rendition. The case of Suydam v. Palmer, 63 Ga. 547-548, does not apply.” The fact that the claimant in this
Judgment affirmed.
It appears that the defendant in fi. fa., who had previously been a resident of Fulton County, acknowledged service of a copy of the petition, and waived the jurisdiction after he had become a resident of Douglas County, in the following language: “I hereby consent to the jurisdiction of the' city court of Atlanta, in Fulton County, of this case, and waive any right I have to the jurisdiction of said ease, and agree that the same may be heard and determined by the city court of Atlanta, in which court it has been filed.” Does this waiver on the part of the defendant in fi. fa. preclude or prevent the claimant from asserting in support of his claim that the waiver by Waddell, the defendant in fi. fa., was ineffectual to confer jurisdiction upon the city court of Atlanta because his rights as a third person were thereby injuriously affected? Section 5663 of the Civil Code declares: “Parties, by consent express or implied, cannot give jurisdiction to the court as to the person or subject-matter of the suit. It may, however, be waived, so far as the rights of the parties are concerned, but not so as to prejudice third persons.” The claimant insists that he is a third person and protected by the provision
In Central Bank of Georgia v. Gibson, 11 Ga. 453, the court held that “A judgment rendered by a court not having jurisdiction of the person or subject-matter is void, and may be impeached whenever and wherever it is sought to be used as ‘a valid judgment.” In the fourth headnote the court ruled: “Consent cannot confer jurisdiction on a court which it does not possess by law, and a judgment rendered against an individual by a court without jurisdiction, when the want of jurisdiction has been waived by the defendant, is void as to third person.” In delivering the opinion of the court Judge Nisbet said: “This judgment was rendered against the Central Bank by the superior court of Muscogee County, and the question is this, to wit: had that court jurisdiction over the Central Bank in that county? By the constitution of the State, all civil cases shall be tried in the county wherein the defendant resides. . . Except in the cases provided for in the constitution and in equity cases, a citizen cannot be called to answer to a suit in any county of the State other than that of his residence.
In Georgia Railroad & Banking Co. v. Harris, 5 Ga. 527, Judge "Warner, delivering the opinion of the court, said: “It is said, this provision of the constitution was intended exclusively for the benefit of the defendant, and he may waive it. Whatever may have been the intention of the framers of the constitution it is not for us to know, beyond what they have said in clear and explicit terms. If, however, we permit the judiciary act of 1799 to be explanatory of the intention of the framers of the constitution, it will be apparent that something more was meant than a mere privilege to defendants. The 26th section of the judiciary act of 1799 declares, No confession of judgment.shall hereafter be entered up, but in the county where the defendant or defendants may reside.’ Prince, 427. If this clause of the constitution was intended for the benefit of defendants only, why not permit them to consent to be sued in any county in the State, and confess judgment in any county, and have the same entered up in any county, other than the residence of such defendants?
“But we are of opinion, there is at least one good and substantial reason why all civil cases should be tried in the county wherein tjie defendant resides, and all judgments entered up there, without regard to the convenience of such defendant. By our law, judgments create a lien upon the property of the defendant from their date, and it is highly important, especially to the creditors of the judgment debtor, there should be a definite place or locality, where such liens can be ascertained and known to exist, by all persons interested. The constitution has fixed the county of the defendant’s residence as that place, and all judgments obtained in any county or place, other than that prescribed by the law of the land, by
See also Raney v. McRae, 14 Ga. 589 (60 Am. D. 660); Dix v. Dix, 132 Ga. 632 (64 S. E. 790); White v. North Georgia El. Co., 139 Ga. 587 (3) (77 S. E. 789); Ray v. Hix, 146 Ga. 685 (92 S. E. 48); Suydam v. Palmer, 63 Ga. 546; Wheeler v. Martin, 145 Ga. 164 (88 S. E. 951). In the case last cited the court expressly ruled that claimants may dismiss the levy of a fi. fa. obtained by waiver of jurisdiction, and held that as to the claimant the judgment obtained by a waiver of jurisdiction on the part of the defendant was ineffectual to confer jurisdiction so as to affect any rights of the claimant. The ruling in the Suydam case has been followed in Knox v. Bates, 79 Ga. 425 (5 S. E. 61); Beach v. Atkinson, 87 Ga. 288, 293 (13 S. E. 591); American Grocery Co. v. Kennedy, 100 Ga. 462 (28 S. E. 241); Dix v. Dix, supra. It is insisted by the defendant in error that the ruling in this case should be controlled by the decisions in Ansley Co. v. O’Byrne, 120 Ga. 618 (48 S. E. 228), and Charles v. Pitts, 16 Ga. App. 617 (supra). The case of Charles v. Pitts cannot be more than persuasive authority. Ansley Co. v. O’Byrne, if it must not yield to the older authority of Suydam v. Palmer, supra (since it was not even mentioned in the Ansley case), is easily distinguished by its facts from the case at bar, as well as the case of Suydam v. Palmer, which we think controls the case at bar. In the first place, in the Ansley case there was no effort whatever to prove that the defendant had not waived jurisdiction. She merely proved that Mrs. Ansley was never a resident of Fulton County and did not plead. In the case at bar the claimant estab
The judgment excepted to adjudged the property subject and ordered the fi. fa. to proceed. The fi. fa. of the plaintiff was based on a judgment against the maker of a security deed, to whom a bond to reconvey had been executed. The claimant was a transferee of the bond for title and in possession of the land before institution of the suit on the purchase-money notes.