Berger v. Noble

• Decision Date: 07 June 1950
• Docket Number: No. 33087,No. 2,33087,2
• Citation: Berger v. Noble, 81 Ga.App. 759, 59 S.E.2d 761 (Ga. App. 1950)
• Parties: BERGER v. NOBLE. *
• Court: Georgia Court of Appeals

Page 761

59 S.E.2d 761

81 Ga.App. 759

BERGER v.NOBLE. ^*

No. 33087.

Court of Appeals of Georgia, Division No. 2.

June 7, 1950.

Syllabus by the Court

While it is well settled that where joint defendants are sued in the county of residence of one of them and the judgment of the court is in favor of such defendant, the court loses jurisdiction as to the codefendant unless jurisdiction thereof is waived, either expressly or impliedly by the conduct of the defendant, nevertheless, want of jurisdiction of the person is waived and such jurisdiction is admitted where the nonresident defendant, as here, subsequently invokes a ruling of the court on the merits of the case.A ruling by the trial court on a motion for a new trial made by such nonresident defendant is such a ruling on the merits.

The defendant in error, A. A. Noble, herein referred to as the plaintiff, brought an action in trover in the Civil Court of Fulton County against the plaintiff in error, Allen Berger, and his codefendant, Robert Roger Hamby, to recover a certain Ford truck automobile or its value.For a full and complete statement of the caseseeBerger v. Noble, 81 Ga.App. 34, 57 S.E.2d 844 et seq., wherein the case was reported on its first appearance in this court, the exception there being to the overruling of the defendant's motion for a new trial.Following the overruling of his motion for a new trial by the trial court, the defendant filed a motion to set aside the judgment, which alleges facts substantially as follows: That the court rendered judgment against the defendant in the sum of $2,000; that said judgment is void for lack of jurisdiction, on the ground that said judgment failed to include the name of the resident codefendant Hamby, the only defendant residing within the jurisdiction of the court; that this lack of jurisdiction did not become apparent until after the rendition of the judgment against this defendant that this fact appears upon the face of the record in this case; that the judgment is not a joint judgment, and that it is in violation of Art. VI, § 14, Par. IV and Art. VI, § 14, Par. VI of the Constitution of the State of Georgia.To the overruling of this motion the defendant brings error.

Wesley R. Asinof, Atlanta, for plaintiff in error.

O. C. Hancock, Atlanta, for defendant in error.

TOWNSEND, Judge(after stating the foregoing facts).

It is contended by counsel for the defendant that he is a resident of DeKalb County; that his codefendant is a resident of Fulton County; that the judgment for $2,000 entered against the defendant in effect dismissed this action against the codefendant; although an amendment to the original action was filed against the codefendant for two other automobiles or their value in the amount of $4,000, the amendment set out a separate and distinct cause of action against the codefendant in which the defendant had no interest and which did not require any defensive action on his part.He further contends that he was entitled to have his motion in arrest of judgment sustained by the trial court because when judgment was entered against the defendant, a resident of DeKalb County, on the original unamended part of the trover action, and not against the codefendant who was a resident of Fulton County, that the Civil Court of Fulton Constitution of the State of Georgia, Code, son.

Article VI, § 14, Par. IV of the Constitution of the State of Georgia, Code § 2-4904, provides as follows: 'Suits against joint obligors, joint promissors, copartners or joint trespassers, residing in different counties, may be tried in either county.'It is well settled, however, that where such an action is brought in the county of the residence of such defendants, and on the trial of the case no judgment is taken against such resident defendant, the court loses jurisdiction as to the nonresident defendant unless jurisdiction thereof is waived, either expressly or impliedly by the conduct of the defendant.SeeWarren v. Rushing, 144 Ga. 612, 87 S.E. 775;Central of Ga. Ry. Co. v. Brown, 113 Ga. 414(3), 38 S.E. 989, 84 Am.St.Rep. 250.A motion in arrest of judgment has been held to be a proper remedy where jurisdiction has been lost, and not waived.Christian v. Terry, 36 Ga.App. 815, 138 S.E. 244.It follows that jurisdiction of the Civil Court of Fulton County was lost as to the defendant...