Associated Press v. United Press

• Decision Date: 11 April 1898
• Parties: ASSOCIATED PRESS v. UNITED PRESS (WALSH, Garnishee).
• Court: Georgia Supreme Court

29 S.E. 869

104 Ga. 51

ASSOCIATED PRESS v. UNITED PRESS (WALSH, Garnishee).

Supreme Court of Georgia

April 11, 1898

Syllabus by the Court.

1. While, as a general rule, a nonresident defendant in an attachment case, by appearing and pleading to the merits submits himself to the jurisdiction of the court, yet where such a defendant, after having filed an answer to the plaintiff's petition, also at the same term files a demurrer thereto, and obtains an order granting him leave to withdraw his answer, and refile the same subject to such demurrer, it should be heard and determined just as thought the defendant had appeared solely for the purpose of making and insisting upon his demurrer, and such an appearance does not give the court jurisdiction of the defendant's person.

2. A foreign corporation corporation cannot maintain in a court of this state, against another foreign corporation, an action begun by suing out an attachment which was never levied upon any property of the defendant, and which the plaintiff had not sought to make effectual otherwise than by causing a summons of garnishment to be served upon a person not himself indebted to the defendant, but who was an agent of a third foreign corporation, a debtor of the defendant, not having an office or transacting any business in this state.

Error from superior court, Richmond county; E. H. Callaway, Judge.

Action by the United Press against the Associated Press and Patrick Walsh, garnishee. Judgment for plaintiff, and the Associated Press brings error. Reversed.

Frank H. Miller and W. K. Miller, for plaintiff in error.

Boykin Wright, J. R. Lamar, and E. H. Cohen, for defendant in error.

LUMPKIN P.J.

The United Press and the Associated Press are both corporations of the state of Illinois. The former sued out against the latter, which had no office or place of doing business in this state, an attachment returnable to the October term 1894, of the superior court of Richmond county, and caused a summons of garnishment to be served upon Patrick Walsh, as manager and treasurer of the Southern Associated Press, a corporation of the state of Alabama, which has no office in Georgia, and does not transact any corporate business in this state. The plaintiff filed its declaration August 1, 1894. Subsequently Walsh answered, admitting that the Southern Associated Press was indebted to the defendant in a stated sum. The defendant, on November 12, 1894, during the appearance term, filed an answer to the plaintiff's petition. Afterwards, but before the end of that term, the defendant filed a motion to dismiss the attachment and the plaintiff's action, and also a demurrer to the petition, and on the same day obtained an order granting it "leave to withdraw the plea filed November 12, 1894, and refile the same at this time, subject to the motion made to dismiss the attachment and demurrer to the declaration filed to-day." The plaintiff did not except to the granting of this order, but at a subsequent term, when the case came on for trial, moved to vacate and set the same aside. This motion was overruled, and it does not appear that exception was taken to the court's action in refusing to grant it. Among other things, the defendant's motion to dismiss and its demurrer made and presented for determination the point that the plaintiff's action was not maintainable, for the reasons (1) that the courts of this state had no jurisdiction of the person of the defendant, it being a nonresident corporation, having no office or place of doing business in Georgia; and (2) that under the facts appearing upon the face of the plaintiff's pleadings the garnishment did not authorize the retention of the case in court as a proceeding in rem. We do not deem it essential to deal with the other questions presented by the motion to dismiss and the demurrer. The court overruled the former, sustained portions of the latter, and, after allowing certain amendments to the plaintiff's petition, held that the case could proceed to a trial upon its merits. The defendant brings the case here for review, and insists that the court erred in giving to the case the direction above indicated.

1. If the defendant had stood upon its original answer, which was a plea to the merits, we are not prepared to say that irrespective of whether or not the garnishment proceeding was valid, the case might not, upon the idea that the defendant had submitted itself to the jurisdiction of the court, have gone to trial for the purpose of enabling the plaintiff to obtain, by proving the allegations of its petition, a general judgment against the defendant. It is a well settled rule that a defendant may waive all right of objection relating to the question of jurisdiction as to person, and thus become bound by the judgment rendered. Counsel for the plaintiff below insisted that the defendant, by filing its answer, had made just such a waiver, and that it could not subsequently escape the consequences of having done so by withdrawing its answer. The position was that, having voluntarily come into court, and made its defense, the jurisdiction, for the purposes of this case, became irrevocably fixed. Granting that this would be so if the defendant had, without more, simply withdrawn its answer, the record discloses that something more was done. The evident purpose of the defendant in obtaining the order allowing the withdrawal of its answer was to place itself in the attitude of having appeared solely for the purpose of making and insisting upon its motion to dismiss and its demurrer. The language of this order granting leave to withdraw the answer and refile the same "subject to the motion made to dismiss the attachment and demurrer to the declaration" could have no other sensible meaning than as just stated, and could not have been inserted in the order with any other end in view. To hold...