Lowe v. Echols

98 Ga. 36 | Ga. | 1895

Atkinson, Justice.

The official report states accurately the facts as they appear in the record, and therefore a restatement of them here will not be necessary in the consideration of the questions made.

It will be seen that although an attachment had issued upon the ground that “said Mrs. A. J. Lowe is actually removing without the limits of said county of Eulton,” there was no averment either in the affidavit upon which such attachment issued or in the declaration subsequently filed, nor any recital in the bond given or in the writ of attachment, suggesting either that the defendant was a citizen of Fulton county, or that the city court of Atlanta had jurisdiction of her person, or that for any other reason sufficient in law such attachment proceeding was properly returnable to that court. Whether or not the case was in default, or whether the marking of defendant’s counsel would be a sufficient appearance to prevent the case being in default, need not be considered, inasmuch as the court discharged the defendant’s default, and permitted her to make a motion to dismiss the proceeding because it did not appear that the court had jurisdiction of the case, or of the defendant’s person. When this motion was made, it was met by an amendment of the affidavit in attachment, stating the residence of the defendant in the county of Fulton, and thereupon conferring upon the court jurisdiction of the cause. This fact being thereby for the first time issuably pleaded, the court did not err in permitting the defendant to file a plea to the jurisdiction. The marking of defendant’s counsel is not necessarily such a pleading to the merits as waives the question as to the jurisdiction of the court. An appearance is necessary to a motion to dismiss the suit, and if made for that purpose, ought not to, and does not, so admit jurisdiction as to preclude the defendant from filing his defense in abatement. Potts v. Cox, 67 Ga. 521, 526, 527. Nor does the fact that upon such an appearance the court set aside a judgment by default erroneously rendered, malee it a plea to the merits'Such as waives jurisdiction. When the defendant answered by marking her counsel’s name on the docket, she acquitted herself of all default. An answer of that character may not be effective for all purposes, but it is sufficient to require the court at the trial to hear and determine motions which are predicated upon defects appearing upon the face of the pleadings, and the absence of an averment of jurisdiction is such a defect. We do not think, therefore, that when the court set aside the judgment by default, it thereby adjudged that the defendant could not be heard on the motion to dismiss for the want of jurisdiction; and when this motion was met by an amendment averring jurisdiction, the defendant should have been allowed to file a plea to the jurisdiction which answered this amendment.

The allowance of the amendment broadening the prayer of the attachment declaration so- as to authorize the grant of a general judgment, might not have had the effect of opening tire pleadings so as to admit the plea to the jurisdiction. Yet, the other amendment averring jurisdiction did have this effect; and although the trial judge may have put his judgment allowing the plea upon the first rather than upon the last mentioned amendment, we do not think that for this reason tire defendant should be deprived of her right to make this defense. Both amendments were> according to the plaintiff, at the time they were offered substantial, and after a finding in favor of the defendant upon her plea to the jurisdiction, we think the court erred in setting aside the judgment and granting a new trial, upon the sole ground that the plaintiff’s declaration was good without amendment, and that as a consequence the amendments offered were not sufficiently substantial to justify the allowance of the plea to the jurisdiction.

Judgment reversed.