Barnes v. Continental Ins. Co.
| Decision Date | 05 October 1973 |
| Docket Number | No. 28086,28086 |
| Citation | 231 Ga. 246,201 S.E.2d 150 |
| Parties | Jesse Danny BARNES v. CONTINENTAL INSURANCE COMPANY. |
| Court | Georgia Supreme Court |
Syllabus by the Court
Service by publication is not authorized in a tort action in which a personal judgment is sought against the tortfeasor.
Garland & Garland, Reuben A. Garland, Jr., Edward T. M. Garland, Atlanta, for appellant.
Swift, Currie, McGhee & Hiers, J. Alexander Porter, Atlanta, for appellee.
Jessie Danny Barnes filed a complaint against Continental Insurance Company, demanding judgment against it for the amount of a default judgment obtained by the plaintiff against Oscar Owen Land, III. Barnes alleged that he had obtained judgment against Land, after service by publication, for a tort committed by Land in the negligent operation of a motor vehicle, which resulted in injuries to Barnes; and that Land was insured under a policy issued by Continental.
Continental filed an answer, and thereafter filed a motion for judgment on the pleadings. The first ground of the motion was that service was not perfected upon Land, in the action upon which the complaint against Continental was predicated, in accordance with Code Ann. § 81A-104 ().
The second ground of the motion was that Ga.L.1966, pp. 609, 610, § 4(e)(1) (i), as amended (Code Ann. § 81A-104(e)(1)(i) wherein it is provided: 'When the person on whom service is to be made resides out of the State, or has departed from the State, or cannot, after due diligence, be found within the State, or conceals himself to avoid the service of the summons, and the fact shall appear, by affidavit, to the satisfaction of the judge or clerk of the court, and it shall appear, either by affidavit or by a verified complaint on file, that a claim exists against the defendant in respect to whom the service is to be made, and that he is a necessary or proper party to the action, such judge or clerk may grant an order that the service be made by the publication of summons,' violates the due process clauses of the State and Federal Constitutions, as applied to the facts of this case.
Continental's motion for judgment on the pleadings was granted by the trial judge and the complaint of Barnes was dismissed with prejudice. The appeal is from this judgment.
' A judgment void on its face may be attacked in any court by any person.' Code Ann. § 81A-160(a) (Ga.L.1966, pp. 609, 662; Ga.L.1967, pp. 226, 239, 240). Where the service in a case is insufficient to give the court jurisdiction to render a judgment, and there is no waiver of service, the judgment may be attacked by any person whose rights are affected by the judgment. McBride v. Bryan, 67 Ga. 584, 587(3); Phillips v. Wait,106 Ga. 589, 591, 32 S.E. 842; Winn v. Armour & Co., 184 Ga. 769(2),193 S.E. 447.
It is the contention of Continental (appellee) that no valid judgment in personam in a tort action can be rendered against a person who is served only by publication, and who does not waive personal service. Barnes (appellant) obtained service by...
To continue reading
Request your trial
-
FOCUS HEALTHCARE MEDICAL CENTER v. O'NEAL
...a complaint that was never served, and thus, OCGA § 9-11-12(b) and affirmative defenses cannot be waived. Barnes v. Continental Ins. Co., 231 Ga. 246, 247, 201 S.E.2d 150 (1973); Collins v. Peacock, 147 Ga.App. 424, 428(3), 249 S.E.2d 142 (a) The trial court lacks authority to assert on beh......
-
Chitwood v. Southern General Ins. Co.
...accomplished on the [uninsured motorist]." Harvey v. Harvey, 147 Ga.App. 154(1), 248 S.E.2d 214 (1978). Compare Barnes v. Continental Ins. Co., 231 Ga. 246, 201 S.E.2d 150 (1973); McGhee v. Kroger Co., 150 Ga.App. 291(1), 257 S.E.2d 361 (1979). Accordingly, appellants' underlying judgment a......
-
Melton v. Johnson
...307, 170 S.E.2d 318 (1969); Veal v. General Acc. &c. Assur. Corp., 128 Ga.App. 610, 197 S.E.2d 410 (1973); and Barnes v. Continental Ins. Co., 231 Ga. 246, 201 S.E.2d 150 (1973). Each of those cases related to persons who were not residents of Georgia or whose state of residence was in doub......
-
Henderson v. James
...does not attach, and no money judgment may be recovered from the tortfeasor or his insurer.") (citations omitted); see also Barnes v. Continental Ins . Co., 231 Ga. 246, 246-247, 201 S.E.2d 150 (1973) ; Baxley v. Baldwin , 279 Ga. App. 480, 482 (2), 631 S.E.2d 506 (2006). The Melton Court r......