Syllabus
by the Court.
Under
the decision of the Supreme Court in the case of Lyndon
v. Georgia Ry. & Elec. Co., 129 Ga. 353, 58 S.E. 1047
the writ of error is not subject to dismissal.
[Ed
Note.-For cases in point, see Cent. Dig. vol. 2, Appeal and
Error, § 1621.]
Where
the record shows a return of service prima facie valid, and
the defendant discovers the existence of the return prior to
judgment, the objection of lack of service can be made only
by plea in abatement, accompanied by a traverse of the
official return.
(a)
Such a plea, being dilatory in its nature, should be
verified.
(b) If
the return of service be made by a deputy sheriff, both he
and the sheriff are necessary parties to the traverse.
[Ed
Note.-For cases in point, see Cent. Dig. vol. 40, Process, §
223; vol. 39, Pleading, § 883.]
A plea
to the jurisdiction must be verified.
[Ed
Note.-For cases in point, see Cent. Dig. vol. 39, Pleading, §
182 1/2.]
Service
of process on a nonresident corporation may be legally
perfected, so as to give jurisdiction to the courts of this
state for the rendition of a judgment of at least local
efficacy, by handing a copy personally to an agent
designated as a "commercial agent," who maintains
an office in this state, furnished him by the defendant
company, wherein he does chiefly correspondence, and who
represents the defendant in soliciting freights and other
business, but who has no authority to make contracts, sell
tickets, or to collect money for the defendant.
[Ed.
Note.-For cases in point, see Cent. Dig. vol. 12,
Corporations, § 2610.]
A
special appearance, urging lack of service and lack of
jurisdiction, is not waived by the filing of a demurrer or
plea to the merits under the express protestation that the
special appearance is not waived.
[Ed.
Note.-For cases in point, see Cent. Dig. vol. 3, Appearance,
§ 143.]
Error
from City Court of Atlanta; H. M. Reid, Judge.
Action
by G. A. Bell against the New Orleans & Northeastern Railroad
Company. Judgment for defendant, and plaintiff brings error.
Defendant in error moves to dismiss the bill of exceptions.
Motion denied, and judgment reversed.
Where
there is an exception to the final judgment, and error is
duly assigned through exceptions pendente lite to a
controlling interlocutory ruling, a writ of error will not be
dismissed irrespective of whether the assignment of error to
the final judgment is sufficiently specific or not.
Bell
instituted his action in the city court of Atlanta against
the New Orleans & Northeastern Railroad Company, alleging
that the defendant had an office and an agent in the county
in which the court is located. A deputy sheriff made the
following return: "Served the defendant New Orleans & Northeastern Railroad Company, a corporation, by serving Ray
Knight, its commercial agent, by leaving a copy of the within
writ and process with him in person at the office and place
of doing business of said corporation in Fulton county,
Georgia. This January 30th, 1906." At the first term the
defendant filed the following defense: "The defendant
prays leave to appear specially for the purpose herein set
forth, and for no other purpose, and hereby traverses the
return of service made by J. T. Jones, deputy sheriff, upon
the summons and process issued in said cause, and moves the
court to make said Jones a party hereto, and to set aside the
said return of service, for the reason that said return is
untrue in fact; and defendant moves the court to disregard
said return for the reason that it is insufficient in law,
and to dismiss said cause, and hereby prays the judgment of
the court whether it should be compelled to appear therein or
plead to the petition filed therein, for the reason that it
has not been served with process therein, and has not
acknowledged, and does not acknowledge, service therein, nor
waive due service of process upon it, on the following
grounds, to wit: (1) The city court of Atlanta has no
jurisdiction over the person of defendant, for the reason
that it is a nonresident corporation and is not doing
business in the county of Fulton and state of Georgia, and
has no place nor office in said county for transacting the
usual and ordinary business of said corporation, and no
officer or agent of said corporation is located in said
county. (2) The person mentioned in said deputy sheriff's
return of service in said cause, to wit, 'Ray
Knight,' is not such an officer or agent of said
corporation as is subject to service of process in suits
against said corporation in order to bind said corporation
thereby, nor has he any power or authority to acknowledge
service of process, so as to make said acknowledgment binding
upon said corporation, nor to waive such process. Said Knight
was employed by the defendant, at the time of the alleged
service of said process, for the sole purpose of diverting
freight to such railroads leading out of Atlanta, Ga., as had
running connection with the defendant's line at Meridian,
in the state of Mississippi. He had no authority to sell
tickets, or to make contracts or rates, for the
transportation of freight or passengers over the
defendant's road, nor to collect money due defendant for
such transportation of freight or passengers. In order to
enable said Knight to serve defendant in said employment of
thus diverting freights over defendant's line, it
supplied him at its own expense with a deskroom in the
Equitable Building, in the second floor of said building, in
Atlanta, Ga., which room was occupied in part by the employés
of the Philadelphia & Reading Railway and in part by another
person, who was not connected in any way with, nor employed
by, either defendant's road or the Philadelphia & Reading
Railway. This room was of small size, and had only one door
leading out into the hall of said building, and on said door
was printed the following words and notice, to wit: 'N.
O. & N.E. R. R., A. & V. Ry., V., S. & P. Ry., Office
Commercial Agent. Philadelphia & Reading Railway, Office
Traveling Freight Agent, John J. Lynch.' The letters and
initials aforesaid, preceding the words, 'Office
Commercial Agent,' were intended to refer to three
different railroads by which said Knight was employed for the
purpose hereinbefore set forth, viz., the New Orleans & Northeastern Railroad, the Alabama & Vicksburg Railway, and
the Vicksburg, Shreveport & Pacific Railway. Said
Knight's employment and line of work for the said three
railroads necessitated his traveling about the territory
adjacent to Atlanta most of the time and hence he was out of
his said office or room in the Equitable Building and away
from the city of Atlanta from four to five days in every
week. In fact, he merely kept his desk in said room as a
place for his mail to be sent and a place to write letters
while in Atlanta, and his said deskroom in said room was paid
for in part by each of the said three railroads by which he
was employed as aforesaid."
By order the deputy sheriff was made party to the traverse
and acknowledged service. The plaintiff filed his motion to
strike the plea to the jurisdiction and the traverse and
exceptions to service filed by defendant in said case, on the
following grounds: Because the same is not sworn to. Because
said traverse is insufficient in law; because it appears from
said traverse or plea to the jurisdiction that the defendant
did have an agent in said county and a place of business. It
is immaterial that the office was small, and that it had but
one door to it, and that other companies had the right to use
it. It is immaterial that the defendant's agent also
represented other companies. It is immaterial that said agent
was limited in authority. It is not material that said agent
was frequently out of the office. By way of amendment the
plaintiff also filed the following: "Plaintiff moves to
strike the defendant's plea to the jurisdiction on the
following grounds: Said defendant company has filed a general
demurrer to plaintiff's cause of action, and in so doing
has thereby pleaded to the merits of plaintiff's cause of
action. The demurrer, under our code pleadings, must be filed
at the first term, and must be disposed of before either the
plea or answer, and, in being disposed of, is an admission
and waiver of the court's jurisdiction. Defendant has
pleaded to the merits of plaintiff's cause of action, and
in so doing waives the right to plead to the jurisdiction of
the court. Defendant has pleaded to the merits, and thereby
invokes protection of the court in its defense, and hence
cannot deny the court's authority to enforce the right of
the plaintiff (on the ground that the defendant is not within
the jurisdiction of the court) or to judge the liability of
the defendant company. Said plea to the jurisdiction is not
sufficient, because it is not set up therein what court in
this state has jurisdiction of said defendant company. Said
plea to the jurisdiction does not show on its face
jurisdiction in another court. Wherefore plaintiff prays that
the said plea be stricken. Plaintiff demurs to the
defendant's traverse, and says that the same is not
sufficient, for the following reasons: The prayer in the
traverse does not set up the fact that the sheriff has been
notified that he is to be made, or of his having been made, a
party defendant in the traverse. There has not been such
service on the sheriff, appearing upon the face of the
traverse and the entries thereon, as to make the sheriff a
party defendant to the traverse, in that it is not shown. The
foregoing defects appear on the face of the traverse.
Wherefore plaintiff prays that said traverse be
stricken."
The
court, upon hearing...
