Allied Finance Co. v. Prosser, 38698
| Citation | 119 S.E.2d 813,103 Ga.App. 538 |
| Decision Date | 04 April 1961 |
| Docket Number | No. 1,No. 38698,38698,1 |
| Parties | ALLIED FINANCE COMPANY, Inc. v. B. J. PROSSER |
| Court | United States Court of Appeals (Georgia) |
Syllabus by the Court
A State statute which provides for substituted service upon a nonresident individual doing business in that state and which provides: 'For the purpose of this Act, and without including other Acts that may constitute doing business, any * * * nonresident natural person shall be deemed doing business in this State by entering into contract by mail or otherwise with a resident of Texas to be performed in whole or in part by either party in this State * * *' is unconstitutional as to an individual nonresident of such State in a case where the nonresident enters into a single contract for the purchase of an automobile either by signing a contract while temporarily in Texas or by mailing the contract to a resident of Texas. A judgment in personam against such a nonresident obtained in Texas and based upon substituted service upon the Secretary of State of Texas, will not be accorded full faith and credit by the courts of Georgia.
The plaintiff brought action against the defendant in the Superior Court of Bulloch County, Ga., to recover on a judgment it obtained against the defendant in the State of Texas. To the plaintiff's petition the defendant filed his answer, demurrer and special plea of nul tiel record, alleging that the judgment obtained in Texas is void for want of jurisdiction of the defendant by the Texas court. The record discloses that the plaintiff obtained a judgment for the unpaid balance of a note against the defendant, maker of the note, in the State of Texas. The petition in the action brought in the State of Texas against the defendant alleges that he is a resident of Statesboro, Ga. In that action service of process was made upon the defendant pursuant to an act of the Legislature of the State of Texas which provides: 'Any * * * non-resident natural person that engages in business in this State * * * shall be deemed equivalent to an appointment * * * of the Secretary of State of Texas as agent upon whom service of process may be made in any action, suit or proceedings arising out of such business done in this State, wherein such * * * non-resident natural person is a party or is to be made a party * * * For the purpose of this Act * * * or nonresident natural person shall be deemed doing business in this State by entering into contract by mail or otherwise with a resident of Texas * * *' Vernon's Ann.Civ.St. art. 2031b, §§ 3, 4. Service was made upon the Secretary of State of Texas and notice to that effect was mailed to and received by the defendant. Thereafter, judgment by default was taken against the defendant. The defendant signed the note and conditional-sale contract on which the action was founded in connection with the trading of an automobile. It does not appear from the plea whether the defendant signed the note in Texas or mailed it to Texas from Georgia. The court entered its order sustaining the defendant's plea of nul tiel record, and it is to this ruling that the plaintiff excepts.
Fred T. Lanier, Robert S. Lanier, Statesboro, for plaintiff in error.
Anderson & Sanders, Cohen Anderson, Faye Sanders, Statesboro, for defendant in error.
Art. IV, Sec. 1, of the Federal Constitution (Code § 1-401) provides: No question is raised concerning the manner of proving the judgment obtained. The sole question before the court is whether a judgment obtained in a sister state upon service of process as was made under the Texas statute, will be enforced and given full faith and credit in the courts of this state. Counsel for the plaintiff contends that the Texas act is not unlike the Georgia act (Ga.L., 1937, pp. 732, 733, Code Ann. § 68-801) permitting service of process upon the Secretary of State of Georgia as agent for nonresident motorists involved in accidents upon highways of this State. As counsel for the plaintiff aptly points out in his brief: 'The judgment of a court of one State, when sued on, pleaded, or introduced in evidence in another State, is entitled to receive the same faith, credit, and respect that is accorded to it in the State where rendered, so that if valid and conclusive there, it is so in all other States.' We must concede that all authority relied upon by the plaintiff is correct to the extent that full faith and credit will be accorded by this State to judgments rendered in sister states based upon the constitutional laws of our sister States. The question in this case is whether the State of Texas had jurisdiction of the person of the defendant.
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...applied to a nonresident individual than it is when applied to a foreign corporation. Some courts have so held. Allied Finance Co. v. Prosser, 103 Ga.App. 538, 119 S.E.2d 813. On the other hand most courts have refused to make a distinction. Compania De Astral, S.A. v. Boston Metals Co., su......
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...v. Mitchell, 44 Misc.2d 687, 254 N.Y.S.2d 679 (Sup.Ct.1964); cf. Note, 37 Miss.L.J. 177-80 (1965). Contra, Allied Finance Co. v. Prosser, 103 Ga.App. 538, 119 S.E.2d 813 (1961). After considering the above cited cases, among others, we are not persuaded by the decision of the seventh circui......
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