Union Marine Fire Insurance v. McDermott, 31 Ga. App. 676

Union Marine Fire Insurance v. McDermott

31 Ga. App. 676 | Ga. Ct. App. | 1924

Lead Opinion

Bell, J.

(After stating the foregoing facts.) That part of section 2564 of the Civil Code’which provides that in an action of the character referred to service may be perfected upon the insurance company by leaving a copy of the petition or writ where the agency or place of doing business was located in the county at the time the cause of action accrued, or the contract made out of which the same arose, has been held by the Supreme Court to be unconstitutional, because violative of the due-process clauses of both the State and the Federal constitutions. Jefferson Fire Insurance Co. v. Brackin, 140 Ga. 637 (2) (79 S. E. 467). The return of service as made by the deputy sheriff upon November 17, 1921, therefore amounted to no service at all and was properly disregarded. The process attached on the date of the filing of the suit was directed to the sheriff of Floyd county, although the petition shows upon its face that service could not be perfected by this officer, because it appears therefrom that the defendant did not have in Floyd county any agency or place of business at which or any agent upon whom service might be made. If it had appeared in the original petition, as it did later by the amendment of March 4, 1922, that the defendant had a designated agent elsewhere in the State upon whom service might be perfected, then the clerk should have issued a process directed to the sheriff of the county of the residence of such agent (Jefferson Fire Insurance Co. v. Brackin, supra), but until this fact was alleged the petition did not disclose the possibility of service by any one, and the clerk therefore was powerless to issue a process directed to any officer whomsoever.

Whether it be true that where a clerk is authorized to issue a. process, the fact .that the process so issued is directed to the, wrong officer will not render the process absolutely void, but merely defective and amendable (see, in this connection, Beasley v. Smith, 144 Ga. 377 (2), 87 S. E. 293; Callaway v. Harrold, 61 Ga. 111; Mitchell v. Long, 74 Ga. 94 (3); Richmond & Danville R. Co. v. Benson, 86 Ga. 203, 12 S. E. 357, 22 Am. St. R. 446; Kelley v. Fudge, 2 Ga. App. 759, 59 S. E. 19; Pearson v. Jones, 18 Ga. App. 448, 89 S. E. 536), this could not be the case where the clerk was wholly without power to issue the process at all. Here the aver*680ments of the petition were insufficient to confer such authority. “Yoid process, or where there is no process or waiver thereof, cannot be amended.” Civil Code (1910), § 5693. “Where a petition^ setting out a cause of action has been filed and followed up by th^' issuance of process and service, the time of the commencement ,of the suit is the date of its filing. But where, after such filing, no process of any character was issued and annexed to the petition, nor waived, before the commencement of the term to which the petition was made returnable, there was in fact no suit pending. The filing of the petition without more does not operate to commence a suit; nor has the judge in such a case authority, at or after the return term, to order a new process to issue.” Nicholas v. British America Assurance Co., 109 Ga. 621 (34 S. E. 1004). See also Chapman v. Central of Georgia Railway Co., 20 Ga. App. 251 (92 S. E. 1025). In none of those .cases in which it has been held that when, without negligence of the plaintiff, there'has been a failure of service, the court might, at or after the appearance term, order a new process, and that a service then made would be valid (among these cases see Allen v. Mutual Loan & Banking Co., 86 Ga. 74, 12 S. E. 265; Sims v. Sims, 135 Ga. 439, 69 S. E. 545), had there been a previous total absence of process. In the Nicholas case the Supreme Court further said: “It is freely conceded that in cases where the process attached is irregular or defective, the same may be cured by amendment under the order of the judge; but the provisions of law which apply to the amendments of process do not obtain in a case where there is an entire absence of any original process.” In that case the clerk had issued a process, but not until after the appearance term had passed, and therefore not until his power to do so had been lost. It was held, the original process being void, the judge was without authority, at or after the return term to.order the issuance of a new process. That case differs from the case at bar only in the fact that here the power of the clerk to issue the process was never, conferred, because the petition was wholly insufficient 'for that purpose, in that it did not disclose that there was any officer to whom the process might be directed. In this respect the petition is unlike that in Jefferson Fire Insurance Co. v. Brackin, supra; for in that case “the petition alleged that the defendant company had duly appointed and authorized a named person resident in another county of the State to acknowledge or *681receive service of process and upon whom process might be served in suits against the company.” The clerk had before him this averment of the suit when issuing the process directed to the sheriff of that county. “In this State the filing of the petition in the clerk’s office will’ be considered as the commencement of the suit, if service is perfected as required by law. But if no service is made, the mere filing of a petition will not suffice to authorize the action to be treated as commenced and perpetually pending.” McFarland v. McFarland, 151 Ga. 9 (2) (105 S. E. 596).

It follows from the above that the petition cannot be treated as a suit pending from the date of its filing, but, on the other hand, whatever life, if any, it may have had originally had already become extinct when the judge allowed the amendment of March 4, and thereupon ordered the issuance of a new process and the perfection of service for the succeeding term. The mortality of the action being complete, mere judicial power could not revive it. Thus not only was there no action commenced until more than 12 months after the happening of the loss, but even if the so-called action, in view of the defects noted could by any possibility be said to have had a germ of life at its filing, yet the suit, having abated by reason of the want of process, is to be treated as a nullity. In this view the additional fact, shown in the record but not given in the statement above, that the plaintiff had filed a previous suit upon the same cause of action, which was followed by service and then dismissed, is immaterial. But even if we could hold that a valid suit was pending from and after March 4, 1922, yet it being stipulated in the policy that no action thereon should be sustainable unless commenced within twelve months next after a loss should occur, an action brought after the lapse of that period was barred, although it purported on its face to have been a renewal of a previous action which was instituted within the time limited, and to have been brought within six months after the dismissal of the first action. Melson v. Phenix Insurance Co., 97 Ga. 722 (25 S. E. 189).

This case is identical in principle with the Nicholas and Chapman cases. The court erred in overruling the demurrer.

Judgment reversed.

JenTcins, P. J., concurs. Stephens, J., dissents.

Rehearing

*682ON MOTION EOR REHEARING.

Bell, J.

The -defendant’s demurrer began as follows: “Now comes the defendant at the first term after service of process,” etc. A part of the demurrer is purely general in nature. The court did not overlook these facts in rendering its decision. Nor did we overlook section 5529 of the Civil Code, which provides that “Appearance and pleading shall be a waiver of all irregularities of the process, or of the absence of process, and the service thereof,” or the numerous decisions in which this section is applied. Neither were we unmindful that the filing of a general demurrer is appearance and pleading to the merits. But in view of the demurrer as a whole, it cannot possibly be taken that in using the expression, “Now comes the defendant at the first term after service of process,” the defendant intended to waive the invalidity either of the process or of the service made thereon, when in the selfsame pleading the validity of each is distinctly attacked. IJpon this question the case falls well within the principle of the decision of the Supreme Court in Stallings v. Stallings, 127 Ga. 464 (6) (56 S. E. 469, 9 L. R. A. (N. S.) 593), wherein it was said: “The rule that appearance and pleading waives irregularities in the process or its absence, and the service thereof, and the other rule which declares that if a defendant appear and plead to the merits, without pleading to the jurisdiction and without excepting thereto) he admits the jurisdiction of the court, have no application so as to effect a waiver where the defendant excepted to the service, moved to dismiss the case for want of service, and pleaded to the jurisdiction at the time of filing his defense.” See also Western & Atlantic R. Co. v. Pitts, 79 Ga. 532 (3) (4 S. E. 921); McFarland v. McFarland, 151 Ga. 9 (3) (supra); Medical College v. Rushing, 124 Ga. 239 (3) (52 S. E. 333); Cox v. Adams, 5 Ga. App. 296 (2) (63 S. E. 60); Carter v. Smith, 5 Ga. App. 804 (2) (63 S. E. 932); Conner v. Hodges, 7 Ga. App. 153 (2) (66 S. E. 546); Drake v. Lewis, 13 Ga. App. 276 (2) (79 S. E. 167).

Rehearing denied.

Jenkins, P. J., and Stephens, J., concur.