120 Ga. App. 362 | Ga. Ct. App. | 1969
Lead Opinion
The present cases are actions brought by residents of the State of Pennsylvania against another resident of the State of Pennsylvania seeking recovery of damages against the defendant as the result of a collision on the highways of this State. The actions were brought and service was had under our Nonresident Motorists’ Act (Ga. L. 1937, p. 732, et seq., as amended; Code Ann. § 68-803). A motion to quash and vacate the service of summons was made in both cases on the following grounds: “(a) Defendant has not been served with summons herein in a manner and form contemplated by the laws'of the State of Georgia, and she should not therefore be held and required to plead herein; (b) Both plaintiff and defendant are residents of the State of Pennsylvania and neither plaintiff nor defendant is a resident of the State of Georgia or of Barrow County in which this action is pending and, therefore, this court is. without jurisdiction to entertain this action or to issue a summons directing this defendant to appear herein; (c) Plaintiff, being a nonresident of the State of Georgia, is not entitled to utilize substituted service under the provisions of the Nonresident Motorists’ Act of Georgia (Georgia Code Section 68-801 et seq.) and as such nonresident plaintiff is not a person contemplated by-and falling within the purview
1. The questions raised have been decided favorably to the appellant by the Supreme Court of this State in Wade v. Hopper, 209 Ga. 802 (1, 2) (76 SE2d 403) and in that same case in this court (Wade v. Hopper, 89 Ga. App. 87, 89 (1) (78 SE2d 809)). It appears therefore that the plaintiffs in the present case were entitled to proceed under the Nonresident Motorists’ Act and have service made thereunder even though they were nonresidents of this State.
2. We do not deem it improper to add that even if the original Act of 1937 had not given a nonresident such a right, a nonresident does have such right under the Act of 1937 as amended. The Act of 1947 made provision for an action to be brought by a nonresident plaintiff against the nonresident user of our highways in the county in which the injury occurred. However, it appears that the Act of 1947 sought to repeal Section 68-803 of the Code of Georgia of 1933, when no such section existed, and made no reference to the Act of 1937. Section 3 of the Act of 1937 was codified as Section 68-803 of the publication of the Harrison Company entitled “Georgia Code Annotated.” The 1947 Act attempted to make changes by providing that “if the plaintiff in such suit is a nonresident of the State of Georgia, then in that event such suit shall be brought in the county in this State in which the accident or injury occurred or the cause of action originated. . .” There can be little question that the Act of 1947 was abortive and of no effect since it attempted to amend a nonexistent section of the Code of 1933. See in this connection CTC Finance Corp. v. Holden, 221 Ga. 809, 811 (147 SE2d 427). However, this abortive attempt was cured by the Act of 1955 (Ga. L. 1955, p. 650)
Judgment reversed.
Dissenting Opinion
dissenting. The present appeals are from orders of the trial judge which did not finally dispose of the cases but merely quashed the service of summons. The certificate required under such circumstances is that the trial judge certify “that such order, decision or judgment is of such importance to the case that immediate review should be had.” Section 1 of the Act approved April 8, 1968 (Ga. L. 1968, p. 1072; Code Ann. § 6-701, subparagraph (2)). We have no such certificate here. Nor do we have one which can be construed as being intended to be a certificate for the review of such an order. The certificate here is predicated entirely upon statutes relating to certificates for review of. a denial of a motion for summary judgment, which merely required a certif
