58 Ga. App. 134 | Ga. Ct. App. | 1938
Clyde Casey filed an action against A. H. Cooledge on a judgment reviving a dormant judgment rendered in the State of Alabama. The petition alleged the rendition of the original judgment, a duly authenticated copy of which was attached; that a motion to revive the judgment was filed in the Jefferson County circuit court; that, in addition to being properly served and made a party in said revivor proceeding, Cooledge appeared and filed his motion to quash, motion to dismiss, and his plea and answer, and had his day in court; and that a judgment of revivor was duly rendered, an authenticated copy being attached to the
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 lack 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). One of three things occurred. The Alabama court impliedly ruled against
It might be argued that it is inferable from the fact that the motion to quash was not expressly passed on that it was abandoned and the jurisdiction thereby waived. It seems to us to bo more reasonable to say that the judge did his duty in considering the motion first, and, having decided against it, impliedly so ruled in granting the motion to revive, or ignored it over the protest of the defendant. No Alabama law is pleaded to the effect that a special appearance is a submission to jurisdiction for all purposes, as was true in Jones v. Jones, supra. Some States have such a rule, which is valid; but this court can not presume that it exists in Alabama. From the judgment roll itself we are of the opinion that the Alabama court did not have jurisdiction of the person of the defendant, and was powerless to render a valid judgment against him; and that he may properly raise such a question in the present suit. In these circumstances it was error for the court to overrule the general demurrer to the petition. A great deal of argument is made by the attorneys for the defendant in error, to the effect that the plaintiff in error prevailed in a first trial in the Alabama court, and failed to except to the ruling on jurisdiction by cross-bill of exceptions. Neither this trial nor the judgment of the Supreme Court of Alabama is pleaded, and no notice can be taken by this court of the first trial or of the appeal, in the absence of proper allegations in the suit on the judgment or reference to the records of such in the judgment roll. Bolton v. Bluestein, 55 Ga. App. 782 (191 S. E. 388), and cit.
An assignment of error on a judgment striking an answer can not be made in a bill of exceptions assigning error on a judgment overruling a general demurrer to a petition. Wright v. Morris, 50 Ga. App. 196 (3) (77 S. E. 365). Under the peculiar
Judgment reversed.