1. Where the maker and the endorser of a promissory note are residents of different counties, and are sued jointly in the county of the residence of the latter, the court, in the absence of a waiver of jurisdiction, either express or implied, is without jurisdiction of the person of the maker, and a judgment rendered in such a proceeding is void.
(a) Where such judgment is void on the face of the record, a failure to traverse an entry of service or to plead to the jurisdiction will not preclude the defendant from seeking in an equitable action, to have the judgment set aside.
2. The statute of limitations provided by the Code, § 3-702, has no application to an equitable proceeding to set aside a judgment which is
void on the face of the record because of a lack of jurisdiction of the person.
No. 15471. JUNE 6, 1946.
W. H. Ivey filed an equitable petition against State Mutual Insurance Company and S.W. Howell, Sheriff, seeking an injunction and other relief. The petition alleged in substance: On July 28, 1941, the defendant, State Mutual Insurance Company, brought suit in the Justice Court of the 1314th District, G. M., of Tift County, Georgia, against W. H. Ivey (the plaintiff in the present case) and W. L. Bedgood, upon a promissory note made by Ivey, and payable to the order of Bedgood, in the principal sum of $48.10. Upon this suit a second original and copy of summons issued (the contents being set out in full in the petition), with a copy of the note attached, showing its sole maker to be W. H. Ivey, its payee W. L. Bedgood, with an entry of endorsement on the back of the note by Bedgood. Service was had on Bedgood in Tift County, Georgia, and the second original and summons were served upon W. H. Ivey by a constable of Early County, Georgia, on July 28, 1941, and his entry of service was made on the second original. At the regular August term, 1941, of said justice court, a judgment in favor of State Mutual Insurance Company was entered against W. H. Ivey and W. L. Bedgood for the principal and interest due on the note. W. H. Ivey has been a resident of Early County, Georgia, for the past ten years. He was never served in the justice court suit except by second original by an Early County constable in Early County. He did not waive service, did not enter an appearance or plead in the case in the justice court, and did not otherwise subject himself to the jurisdiction of the justice court.
On December 29, 1944, an execution, issued upon the judgment obtained in the justice court, was levied by the Sheriff of Early County on a described truck belonging to the plaintiff; and the sheriff, under the direction of the defendant company, is preparing to advertise the property so levied upon and to sell the same for the purpose of satisfying the execution, and unless restrained and enjoined from so doing, will advertise and sell the property levied upon.
It was further alleged that the judgment so obtained is void as to W. H. Ivey, for the reason that the justice court rendering it never had jurisdiction of his person; that the judgment is void, because the venue of a suit against the maker and endorser of a promissory note is in the county of the residence of the maker, and the suit on the note was brought in the county of the residence of the endorser; that the plaintiff has no adequate remedy at law; and that the execution is a cloud upon the title to the plaintiff's property.
The prayers were for an injunction against further enforcement of the execution, and for cancellation and general relief.
The defendant insurance company answered, admitting all the allegations of the petition, except the allegation that the judgment obtained in the Justice Court of Tift County was void, and constituted a cloud upon the plaintiff's title, and the allegation that the plaintiff is without an adequate remedy at law. By consent of counsel, the case was submitted to the judge on the pleadings only, including the admissions made in the answer of the defendant insurance company. The court passed an order, denying the prayers of the petition, and finding that, under the pleadings and admissions, the plaintiff was not entitled to an injunction. The exception is to this judgment.
1. Suits against the maker and endorser of promissory notes, residing in different counties, shall be brought in the county where the maker resides. Code, § 2-4305;Glenville Bank v. Deal, 146 Ga. 127" court="Ga." date_filed="1916-11-16" href="https://app.midpage.ai/document/glennville-bank-v-deal-5581365?utm_source=webapp" opinion_id="5581365">146 Ga. 127 (90 S.E. 958" court="Ga." date_filed="1916-11-16" href="https://app.midpage.ai/document/glennville-bank-v-deal-5581365?utm_source=webapp" opinion_id="5581365">90 S.E. 958). Where the maker and the endorser of a promissory note are residents of different counties, and are sued jointly in the county of the residence of the latter, the court, in the absence of a waiver of jurisdiction, either express or implied, is without jurisdiction of the person of the maker, and a judgment rendered on such proceedings is void. Graham v. Hall, 68 Ga. 354" court="Ga." date_filed="1882-02-15" href="https://app.midpage.ai/document/graham-v-hall-5560439?utm_source=webapp" opinion_id="5560439">68 Ga. 354 (4);Mauck v. Rosser, 126 Ga. 268" court="Ga." date_filed="1906-08-13" href="https://app.midpage.ai/document/mauck-v-rosser-5575221?utm_source=webapp" opinion_id="5575221">126 Ga. 268 (55 S.E. 32" court="Ga." date_filed="1906-08-13" href="https://app.midpage.ai/document/mauck-v-rosser-5575221?utm_source=webapp" opinion_id="5575221">55 S.E. 32); Goodman v.Mitcham, 160 Ga. 546" court="Ga." date_filed="1925-06-22" href="https://app.midpage.ai/document/goodman-v-mitcham-5585523?utm_source=webapp" opinion_id="5585523">160 Ga. 546 (128 S.E. 793" court="Ga." date_filed="1925-06-22" href="https://app.midpage.ai/document/goodman-v-mitcham-5585523?utm_source=webapp" opinion_id="5585523">128 S.E. 793). This is true, notwithstanding the maker may have been served by second original in the county of his residence, where he does not appear and plead or otherwise waive jurisdiction. Anderson v. Turner,35 Ga. App. 428" court="Ga. Ct. App." date_filed="1926-05-14" href="https://app.midpage.ai/document/anderson-v-turner-5617864?utm_source=webapp" opinion_id="5617864">35 Ga. App. 428 (133 S.E. 306" court="Ga. Ct. App." date_filed="1926-05-14" href="https://app.midpage.ai/document/anderson-v-turner-5617864?utm_source=webapp" opinion_id="5617864">133 S.E. 306); Mauck v. Rosser, supra; McKnight v. Wilson, 158 Ga. 153" court="Ga." date_filed="1924-04-21" href="https://app.midpage.ai/document/mcknight-v-wilson-5584975?utm_source=webapp" opinion_id="5584975">158 Ga. 153
(122 S.E. 702" court="Ga." date_filed="1924-04-21" href="https://app.midpage.ai/document/mcknight-v-wilson-5584975?utm_source=webapp" opinion_id="5584975">122 S.E. 702).
In the instant case, it appears from the face of the record that suit was instituted in the county of the residence of the endorser of a promissory note, and service upon the maker of the note was attempted by service of a second original in another county. In the circumstances, the judgment is absolutely void "and may be so held in any court when it becomes material to the interest of the parties to consider it." Code, § 110-709. The record showing on its face that the court was without jurisdiction of the person of the defendant, a failure to traverse the entry of service or to plead to the jurisdiction will not preclude the defendant from seeking, in an equitable action, to have the judgment set aside. McKnight v. Wilson, supra. Cases relied on by the defendant in error (Harbig v.Freund, 69 Ga. 180" court="Ga." date_filed="1882-12-19" href="https://app.midpage.ai/document/harbig-v-freund--co-5560577?utm_source=webapp" opinion_id="5560577">69 Ga. 180; Hall v. Tiedeman, 141 Ga. 602" court="Ga." date_filed="1914-04-23" href="https://app.midpage.ai/document/hall-v-tiedeman-5579590?utm_source=webapp" opinion_id="5579590">141 Ga. 602
(81 S.E. 868" court="Ga." date_filed="1914-04-23" href="https://app.midpage.ai/document/hall-v-tiedeman-5579590?utm_source=webapp" opinion_id="5579590">81 S.E. 868); King v. Phillips, 70 Ga. 409" court="Ga." date_filed="1883-03-20" href="https://app.midpage.ai/document/king-v-phillips-5560843?utm_source=webapp" opinion_id="5560843">70 Ga. 409; Bilbo v.Bilbo, 167 Ga. 602" court="Ga." date_filed="1928-12-14" href="https://app.midpage.ai/document/bilbo-v-bilbo-5587174?utm_source=webapp" opinion_id="5587174">167 Ga. 602, 146 S.E. 446" court="Ga." date_filed="1928-12-14" href="https://app.midpage.ai/document/bilbo-v-bilbo-5587174?utm_source=webapp" opinion_id="5587174">146 S.E. 446) are clearly distinguishable. In those cases service was had on the defendant in the county where suit was instituted, and no lack of jurisdiction or venue appeared on the face of the record.
2. This being an equitable action to set aside a void judgment, for lack of jurisdiction of the person appearing on the face of the record, the statute of limitations (Code, § 3-702), providing that all actions to set aside judgments must be brought in three years, is not applicable. Strickland v. Willingham,49 Ga. App. 355" court="Ga. Ct. App." date_filed="1934-07-19" href="https://app.midpage.ai/document/strickland-v-willingham-5624043?utm_source=webapp" opinion_id="5624043">49 Ga. App. 355 (2) (175 S.E. 605" court="Ga. Ct. App." date_filed="1934-07-19" href="https://app.midpage.ai/document/strickland-v-willingham-5624043?utm_source=webapp" opinion_id="5624043">175 S.E. 605); Buchanan v.Williamson, 131 Ga. 501" court="Ga." date_filed="1908-11-13" href="https://app.midpage.ai/document/buchan-v-williamson-5576514?utm_source=webapp" opinion_id="5576514">131 Ga. 501 (4) (62 S.E. 815" court="Ga." date_filed="1908-11-13" href="https://app.midpage.ai/document/buchan-v-williamson-5576514?utm_source=webapp" opinion_id="5576514">62 S.E. 815).
Under the foregoing rulings and the undisputed facts appearing in the record, the judgment excepted to was erroneous.
Judgment reversed. All the Justices concur.