*1 23055. DUNN v. DUNN. July September 13, 1965
Submitted 1965 Decided Rehearing denied Claude Hambrick, plaintiff in error. Spears
Grant, Duckworth, William G. Grant, contra. Mobley, Justice. This case was originated by petition filed Superior in Fulton Court Mrs. Arviner Gosnell Dunn against Gary July Francis Dunn on 1959, seeking a divorce alimony. The issues were submitted to jury returned granting a verdict plaintiff, defendant in error here, a divorce awarding Judgment $500. sum of lump was rendered on the verdict of October 1961. On November 21, 1961, plaintiff a motion filed for new rule nisi on trial and grounds. general attorney, par- Plaintiff’s new who had not ticipated the filed the motion and served *2 plaintiff by in error, defendant, following mail. The “Certificate appears of the “This I certify Service” on motion: is to that have day this opposite party defendant for the in served the fore- going matter copy pleading depositing with this by of a copy properly United States mail of same addressed envelope postage with This 21st adequate day thereon. (signed by . . . November, plaintiff).” for attorney Subsequently, on December 1961, plaintiff filed an amended 15, special motion trial ground. too, for new It that it on a showed was served mail it by and there was affixed “Certificate substantially Service on Amendment Motion” like the certificate cited This above. certificate December 1961. On 1, was dated 15, granted court, December the court new trial. The April 23, without a final awarding plaintiff permanent consisting a divorce and $1,500 monthly paid payable to be until $200 instanter and remarriage April filed death. On defendant Superior motion in Fulton to set aside vacate Court April 23, decree of the alleged final court of personally that he never with either alleging was served original trial and rule nisi or amended motion has that the motion service; new that he never waived trial; for purported of same only its face that the service shows on compliance in with the law defendant mail which is not was motion to set aside Georgia. lower court overruled excepts ruling. this prior judgment. Defendant motion Plaintiff, error, defendant contends the statute limitation aside verdict is barred set is in laches years; any event, three that defendant barred October, knowledge of the first since he actual that the first because May, 1962; 1961 since im it therefore illegally it and that tried trial served, that the motion for new was not material does not become dismissed. for new trial void until motion is whether question determinative view of our upon defend new trial was made motion for legal service of the a new applications “In states all that, 70-306 ant. Code § the rule copy of shall served with opposite party be trial mode of some other is waived.” Unless nisi, copy unless service; personal by statute, there must is prescribed service required motions for new service accordingly, personal (51 SE Hirsch, 123 Ga. Atwood v. unless service is waived. Braziel 471, 472 Baldwin, 116 Ga. 742); Baldwin v. Fox, 39); Jones Hunter, Indemnity Co., Royal Mason v. 123F2d party appears pleads to the
Waiver results where (Town Brantley, merits Fairburn v. appears argues matters collateral to 67)), or where party have must a manner to indicate that motion Daniel, or must have Baldwin served,
been
waived
*3
prior
filing
acknowledgment
An
service
69 Ga.
coupled
nisi
with
trial
rule
the mo
continuing
hearing
of an order
acknowledgment
(82
Throgmorton,
There are no facts from show waiver appearance Defendant made no whatsoever of service. and there
371 is part his might other conduct on from which a waiver inferred.
(a)
is
Where there
thereof,
service waiver
the court
without jurisdiction
merely
and its
is void, not
void
may
able,
be attacked
where such
attempted to be enforced. Code
110-709;
Bryan,
McBride v.
584
v.
(3); Hobby
(5) (10
Ga.
Bunch,
Here, it who is attacking the motion for new thereon. Having nor never been served having waived position service is not same as the mov- granted ant. The new trial was a verdict thereon. legal- The defendant cannot be ly charged any knowledge Certainly, with of these proceedings. required he cannot now be to move to dismiss motion after judgment. verdict Waldor, See Code Waldor v. Merchants’ Bank Macon v. *4 (50 Rawls, 7 191 394); Ga. AD Harris McDaniel, v. 92 Ga. App. (88 442). 299 SE2d precluded Thus he not from attack- ing the proceedings by entire his motion to set aside vacate the the judgment ground on at they incep- that were their void tion for want of
(b) Plaintiff’s that contention defendant’s motion to vacate aside is barred and set the statute of limitation is without provides merit. 3-702 which “Code actions that to set aside brought years should be within three from the rendi- 372 attack applicable not where the
tion of such judgments, is ground that it is for lack the void upon judgment a on made Foster, Foster 207 judgment.” to such v. party a Homburger Homburger, Ga. supra. But see 213 (5), v. (99 213). is not barred Further, 344 defendant remedy to set the Code 110-709 legal laches since he has under law Equity follows the judgment at time. aside a 3-712) is not barred since the attack made 37-103, §§ Ellis applied. be equitable the doctrine cannot law of laches (37 v. 739); Wyche Bussey, SE v. Smith Ga. 106; Montgomery, 160; v. 8 Ga. 11 Ga. Caldwell Greene, (93 70). Louther 20 Ga. SE Tift, v. original judgment 23, 1961,
That the of October when, then statute verdict of a under a recent a 1956, p. pp. Ann. L. 405; 1960, 0Code the the should have tried case affords the plaintiff. parties relief to having subject merely is not one matter, the void but irregular Henry an proceeding. Hill, v. 742). plaintiff position is not attack Furthermore, well-recognized principle law “It is as void. position legal proceed that certain party when assumes maintaining position judg ing, through and succeeds that through acquiescence ment court, opposite permitted to his party prejudice, will thereafter same subject-matter as to the same assume, against contrary position.” adversary, Bruce, Bruce v. Hughes Field, Ray also Cruce, See
Henry assuming position Plaintiff supra. by, Hill, stood procured verdict proper, approximately years It is four judgment. now, not until objects procedure. principle that she Under later, estopped questioning stated from plaintiff above being attack ground. There other meritorious though procured that it is valid, we even judgment, conclude irregular procedure. an through use being no valid motion There for new trial for lack ser granting of October wife thereof, vice *5 awarding a sum alimony lump $500, a and her of divorce judgment settling question divorce binding final valid and the wife. alimony and Thus granting divorce granting the new trial
court
wife a
and
juris-
void,
wholly
the court was
and
were
as
alimony
question
to entertain
consider further
of divorce
diction
and
proceedings
All
and
wife.
further
original judgment
to serve
after the
became final
failure
trial,
judgment was
nugatory
were
and the
supra, and
Waldor,
(3),
null and
Waldor v.
The trial court the motion to erred set aside the judgment April 23,1962.
Judgment concur, except reversed. All the Justices Duck- worth, J., Candler, Cook, P. dissent. J., J., C. and who Justice, Presiding Chief and Justice,
Duckworth, Candler, dissenting. Cook, Justice, The provisions of Code Ann. 30-101 (Ga. 405; 1023) 1956,p. p. L. are In jurisdictional. divorce cases where no issuable defense, and no written jury trial, for a demand verdict is void a and jurisdiction. verdict is likewise void for want of showing The record defense suit issuable was filed to the and jury trial, no written demand for a the verdict of a rendered 13, 1961, it was based reciting decree entered upon that verdict and dated the same shows that the decree day, void on for want jurisdiction, its face under Code nullity it is mere in may 110-709 be so held becomes The parties. Constitution, when it material to Const, VI, IV, Art. Sec. Par. VII Ann. judge
provides jurisdiction a case that alone to has judgment, given jurisdiction render a verdict he was not solely render decree based the void verdict. This jurisdiction decree Kantzipper want of void. Kantzipper, Eagan SE 679); v. First Nat. jurisdiction Want of is never Bank, Though judge jurisdiction irregularity. mere had jurisdiction subject matter and did confer parties, render unlawful and unconstitutional decree the case. an the jury condition of case had no to render jurisdiction to verdict, judge enter decree that void verdict. *6 finding based enter a decree was restricted to a decree hisi Kantzipper and not case the court jury fact verdict. jurisdiction parties subject this matter, had and but jurisdic- “The without court held court was headnote ap- judgment permanent alimony for at the tion to render Eagan term.” case the court pearance Likewise subject held matter, yet it was parties a court” that, permanent alimony rendered “A for beyond the court’s verdict of a there the absence of a verdict of a If as ruled was void. it for want required when the rendered the void law solely jurisdiction, it must follow here the forbid statute jury’s the Constitution verdict when jurisdiction. a verdict likewise for want aside motion to set decree divorce Since being without a jury trial, demand no issuable defense filed no written for a decree of solely existence merit, opinion 1961, the motion was without and it that the court did of June dissenters not err 1965,overruling the same.
23070. WATKINS
CONWAY.
required
credit as
faith and
Duckworth, Chief Justice.
Full
1-401), is
Constitution, Art.
Sec. I
IV,
§
3-701,
foreign judgments by
provision
denied
of Code
State
upon judgments
is:
suits
“All
out
obtained
judgments shall
five
after such
brought
years
shall be
within
cited;
cases
have been obtained.” 50 CJS
38 LE
Watertown,
2. Nor is the 14th Amendment equal (Code 1-815) judg- because domestic denied