*1 FIRST FIDELITY INSURANCE CORPORATION v. BUSBIA. Judge. recovery against Chief plaintiff sought
Bell, prior a plaintiff an insurer on that had parties allegedly obtained third insured under liability policy. prior an automobile The record of the case, court, in a superior tried was admitted defaulted; It evidence. revealed that the defendants delicto, that as the action was ex a of eleven jury impaneled persons was awarded plaintiff $10,000 damages; and that a for that amount stipulation was entered. No is written prior in the that jury contained record case the would be than members. of less twelvе composed Held: was void prior judgment that the
Defendant contends the of its erred in denial court the trial the notwithstanding and for verdict directed default in an a is party Where agree. verdict. We to introduce required the plaintiff ex delicto action damages his amount of the establish evidence may default by before a a jury” "before (a)). (Code Section Ann. 81A-155 CPA § еntered. § "Jurors, (a) provides: Act further of Civil Practice by (a) parties may twelve. less than Juries of record, stipulate filed of stipulation, written that fixed less number shall consist jury (a). Greene, v. In Greеne Code statute.” § 713) that under held was 110-401, by default a judgment existing Code then on a claim for in an action superior entered in jury a without damages, judge aby damages as to void, verdict as existing statute statute. Under our required by ex in an entered cannot be default valid has introduced plaintiff unless delicto action damages his the amount and established evidence our Constitution It сlear under jury.” "before must be courts superior that a statutes 2-5101; Code Code Ann. members. composed of twelve *2 was no (a), Since there 59-703; supra. and CPA § § consist of less would the stipulation jury” twelve, there no trial "before it follows that It follows statute. judgment the required by default as "A ju lack of judgment earlier was void. the entering judgment in a court power risdiction true especially and this is always judgment, avoids parties; other rights it relates to and affects as the court power by usurpation is a mere such action any without collaterally void and be declared may v. Indemnity Co. Royal it.” to revise proceedings direct 205). (73 Savannah, 383, 391 SE2d Mayor &c. of any its face be attacked may A void on judgment (a) (Code Ann. CPA 60 any person. court by § (a)). mere cause is а any is void for judgment A which when so held in nullity may and be it. to consider parties to the interest of the material Merritt, 110-709; Nuckolls v. Code 427). to deny the trial court Thus it was error for and for for directed verdict the defendant’s ground. the verdict on notwithstanding that judgment with direction is reversed entered for defendant. Eberhardt, J., P. with direction. reversed Judgment Hall, J., P. Stolz, JJ., concur. Quillian, and Clark Evans, JJ., Pannell, and dissent. Beеn February Argued 2, 1972 Decided October Rehearing 14, 1973 March denied Reed, Fulcher, Harper, J. Walker for & Hagler, Harper appellant. appellee. Pierce, Pierce, for Hintоn R.
Franklin H. dissenting. Judge, and Cochran Busbia sued Evans, County Superior for of Richmond Court Bohannon upon mishap, injuries trial and automobile suffered an plaintiff a verdict for rendered of the case regularly $10,000, entered on October and Fidelity Thereafter, First In- Busbia sued liability Corporation insurer surance as the automobile during $10,000, Cochran, to collect the following company’s made the counsel verdict, directed on the motion: "Move the court for a grounds evidence, is in is an that the which illegal improper judgment the case is based on jurors, eleven because it was rendered require 12 of this state constitution and the statutes (Tr. 77). legal p. to a verdict.” majority opinion court and reverses the trial I attacked should be set aside. asserts *3 judgment rеgular and valid on its dissent. The itself was every presumes face, and the law each and element ingredient validity judgment said essential to the present supported L. R. same. Atlantic C. Co. v. (156 476); App. Stamps Gause, 216, 225 SE2d Tire (154 (3) Co., 115 Co. v. Acc. &c. Ga. Hartford 656); Smith, 265, SE2d 605). Allen v. jury The itself asserts that "the having ...” which above stated case implies, rendered a verdict foregoing jury. legal authorities, under a right cоmpany What had the insurance to attack this judgment which in a case to which it was was rendered party? answer, answer, not if there is an is found a (§ pp. CPA; 1966, 609, 60, in Code Ann. 81A-160 Ga. L. 240), provides 226, 239, 662; that a which judgment, by any person may void on be attacked face, its and in court. This was not void its face. provided by §Ann. What else is Code 81A-160 as to used may method of attack that all other provides That statute on its face? regular on their are void than those that other judgments —all wit, attack, motion to a direct by be attacked faces —must aside, complaint trial, to set or new motion for equity. attack the here cannot company
So do—because it seeks to collaterally —as it has not resorted not void on its face —and it, wit, to direct attack remedy open to only to the other aside, complaint to or for new set by motion in equity. proper made a company
But had the insurance even in this be considered even if its attаck could attack —and (and make it did not respectfully we submit instance considered) now be and its attack cannot proper attack of this record. under the state yet prеvail could not was introduced proof of the record where only part begins in the allegedly illegal to the discussed as A was later introduced transcript p. at list of names, through scrаtched showing 12 and one name was (Exhibits B-6, transcript). P-1 and Ill of p. through? name scratched When why
But was one being after through? juror excused it scratched Was reason such as drawn with the other for some original the two sickness? And if he was excused did proceed Bohannon, defendants, agree Cochran and occurrence common only jurors? with That trial of lawsuits. this was a suit It must be remembered default, it was in damages, although at trial right present defendants had the to be both participate had the in the selection right *4 (1) (133 Linn, (see Williams v. 892)), question right and had the to offer evidenсe (a) 55, CPA; (§ damages. of See Code 238). 226, 609, 659; 1967, The record pp. L. in participating as to were they present, silent whether trial, waivers, or consents stipulations and as to what respecting have entered into the number of they may who tried the case. Under the authorities cited jurors element presumption every earlier as to the support to of the necessаry validity if present, presumed it must be there were less than And, 12 jurors, agreed upon by this was the defendants. course, liability party of insurer —not a to that case —cannot of two defend- complain way in which the agreed tried or try ants to the case them. In presumed 1. The to be valid summary: 2. legal. is not void on its face. 3. The record 4. regular judgment. shows The insurance is not in company аllowed to make a collateral attack this proceeding. 5. The only attack it could have made was a attack, wit, trial, direct to motion for in new arrest, or in complаint equity. Had there been only jurors the two right participate defendants had the to —as including selection in case, damage had company the burden of showing agree did not they less the presumption being in validity favor of judgment. court,
I would affirm the lower and I dissent from the majority opinion. Judge, concurring dissent. Code Ann. 81A-
Deen, provides: "A judgment void on its face may be attackеd by any person.” A judgment not attacked, especially involved, where third parties are should not be set aside. Where appellant, counsel for the although originally moving to set аside the judgment as face, void on its said during the ensuing colloquy answer to the statement that he inwas no position attack, make a collateral it,” "I’m attacking not and the motion, cоurt thereupon denied the might the court well have taken the statement as a withdrawal of the attack *5 judgment. This shows no reversible error.
47642. BUTTS v. DEPARTMENT PUBLIC OF
SAFETY. Judge. Appellant’s Bell, Chief license was driver’s suspended for his refusal to take a blood or breath test Implied under the L. Consent Law. Ga. (Code 68-1625.1). hearing At a it was shown appellant’s driving
that after arrest in Columbus for given while under the influence intoxicants he was explanation Implied Appellant an Consent Law. requested declined the breath test but a blood test. He hospital. hospital, appellant was taken to a local At the "sign refused to requested forms the blood test” and presence doctor, of his who lives in Lumpkin, Appellant to withdraw the blood. advised the "medical staff” that he would have to appellant use their facilities and their doctor. The anyone present refused to consent to allow to draw the sample. Appellant learning blood testified that after physician present that he сould not have his own draw the blood or to call another local doctor that he "just practicing didn’t want some old intern” to take thought might get hepatitis his blood because he he disеase; some kind of and that since he was advised locally present that analyze there was no one who could point taking the blood there was no revealing blood test. Therе is no evidence the record hospital appellant the content of the form that refused sign. appeal superior On to the court the order of suspension was affirmed. Held: Department Safety hearing, appellant 1. At the of Public place anything did not his refusal to submit on hospital form, contained in the the content of