Goodman v. Mitcham

160 Ga. 546 | Ga. | 1925

Beck, P. J.

(After stating the foregoing facts.)

The ruling made in the first headnote requires no elaboration.

The court erred in granting the injunction, which was done by continuing the restraining order previously granted, and in appointing a receiver. We do not, in making this ruling, pass upon the merits of the case, but base the ruling upon the fact that the court was without jurisdiction of Mrs. Goodman, the only defendant alleged to be a resident of Meriwether County. R. L. Hastey and LaGrange Banking & Trust Company were non-residents. The court had no jurisdiction of any of the defendants, unless Mrs. Goodman was a resident of the county in which the suit was brought. The court seems to have overruled Mrs. Goodman’s plea to the jurisdiction on the ground that she did not file a traverse of service at the August term, 1924, of the superior court. We do not think it was necessary for the defendant to traverse the return as amended, even if it would have been necessary to traverse it in its original form. The return of the deputy sheriff as amended recited the facts; without traversing them the defendant had a right to plead to the jurisdiction of the court and support the plea by evidence. In the case of McKnight v. Wilson, 158 Ga. 153 (122 S. E. 702), this court held: “But such return is not evidence as to matters which are not properly the subject of the return. Kinsey v. Macon L. Co., 136 Ga. 369 (71 S. E. 675). If the record shows a regular return of service by the officer, such return will be conclusive until traversed according to law, unless it be made to appear that the court, with actual service, would have had no jurisdiction of the defendant or of the subject-matter.’ Maund v. Keating, 55 Ga. 396. The constitution of this State declares that all civil cases, with certain exceptions, shall be tried in the county where the defendant resides.’ Civil Code (1910), § 6543. A judgment founded upon a suit in a court which had no jurisdiction of the person of the defendant is void, unless the defendant waived jurisdiction or appeared and pleaded to the merits. Civil Code (1910), § 5964; Bostwick v. Perkins, 4 Ga. 47; Preston v. Clark, 9 Ga. 244; Graham v. Hall, 68 Ga. 354; Mauck v. Rosser, 126 Ga. 268 (55 S. E. 32).” It is true the defendant appeared and pleaded to the merits, but this was subject to her motion and plea to the jurisdiction, in which she insisted that the court was without jurisdiction as to. her. The evidence showing that she was not a resident of Meriwether County at the time of filing the suit and of service was conclusive and without material contradiction. It is true that in the petition filed by the plaintiff it was alleged that Mrs. Goodman was a resident of Meriwether County, but this was not proved on the trial, where Mrs. Goodman denied on oath and showed by uncontradicted testimony that she was not a resident of that county. The affidavit of Mrs. Hastey, deposing that Mrs. Goodman came to a building on the land in controversy, entered the house through a window on the 15th day of August, and remained there some two weeks, did not show residence in the county. The evidence of Mrs. Goodman showed she had been a resident of Fulton County 13 years prior to the filing of the suit. The affidavits of her witnesses show facts set forth in detail, confirming the truth of her assertion that she was a resident of Fulton County. Under the plea and proof sustaining it, the court was without jurisdiction of the defendant, and his judgment is contrary to law and the evidence.

Judgment reversed.

All the Justices concur, except Gilbert, J., absent for providential cause.