Biddinger v. Fletcher, 24709

• Decision Date: 02 July 1968
• Docket Number: No. 24709,24709
• Citation: Biddinger v. Fletcher, 162 S.E.2d 414, 224 Ga. 501 (Ga. 1968)
• Parties: Jeannine BIDDINGER et al. v. Charles FLETCHER et al.
• Court: Georgia Supreme Court

Page 414

162 S.E.2d 414

224 Ga. 501

Jeannine BIDDINGER et al. v. Charles FLETCHER et al.

No. 24709.

Supreme Court of Georgia.

July 2, 1968.

Rehearing Denied July 16, 1968.

Syllabus by the Court

Under the provisions of Georgia's Nonresident Motorist Act (Ga.L.1937, p. 732, as amended; Code Ann. Ch. 68-8) when the nonresident plaintiffs selected a forum which is not prejudicial to third persons, though they had the right to institute the suit in another county, and the nonresident defendants appeared and pleaded to the merits thereby waiving any right they had to question the venue, the judgment rendered in said case is valid and binding on the parties.

Burch & Boswell, John S. Boswell, Sr., Valdosta, for appellants.

Young, Young & Ellerbee, Cam U. Young, Valdosta, for appellees.

ALMAND, Presiding Justice.

James Biddinger and several others, alleging themselves to be nonresidents of Georgia, brought their petition in the Superior Court of Lowndes County against Charles Fletcher and Ronald C. Fletcher, also nonresidents of Georgia, in which the following case was stated: On December 22, 1963, while James Biddinger, his wife and their two children were traveling south in their motor vehicle on Interstate Highway 75, and the defendants were also traveling south on the same road near Valdosta, Georgia, there was a collision by the respective motor vehicles of the parties. The plaintiffs believing the collision and resulting damages to person and property had occurred in Lowndes County, brought their suit against the defendant nonresidents in the City Court of Valdosta, now the City Court of Lowndes County, under the provisions of the Georgia Nonresident Motorists Act (Ga.L.1937, p. 732, as amended; Code Ann. Ch. 68-8). The defendants through their counsel filed defensive pleadings. On the trial of the action the jury on October 11, 1966, returned a verdict in favor of the defendants. The plaintiffs' joint motion for new trial was overruled. On Appeal the Court of Appeals affirmed (116 Ga.App. 532, 157 S.E.2d 764), and certiorari was denied by the Supreme Court. It was alleged that the plaintiffs on February 13, 1967, discovered that the collision had occurred not in Lowndes County, but in Cook County, Georgia, and on December 15, 1967, the plaintiffs filed suit against the defendants in the Superior Court of Cook County for the same cause of action originally brought in the City Court of Valdosta. It was alleged that the verdict and judgment in favor of the defendants in the City Court of Valdosta was a nullity due to the court's lack of jurisdiction and that Cook County alone had jurisdiction because the collision had occurred in that county. The prayers of the petition were for a decree that the judgment entered in favor of the defendants in the City Court of Valdosta be declared null and void, the action in the City Court of Valdosta having been commenced by mistake, and the action in that court be transferred to the Superior Court of Cook County.

The return of service of process names service on 'Cam Young, attorney for defendants.' The defendants moved to dismiss the suit on the following grounds: (a) the complaint fails to state a claim against each of the defendants, (b) the court does not have jurisdiction of the subject matter because of the prior final judgment in the City Court of Lowndes County, (c) both defendants are nonresidents of Georgia and not subject to service of process, (d) no substantial relief is prayed against a defendant residing in Lowndes County, and (e) service upon Cam Young is not binding on the defendants because he was not the attorney for either of the defendants in any action then pending in Lowndes County.

The trial court sustained every ground of the motion to dismiss. The appeal is from this order, and error is enumerated on all the rulings of the trial court.

While the complaint may have been subject to one or more of the grounds of the motion to dismiss, we are of the opinion that the first ground-that 'the complaint fails to state a claim against either defendant upon which relief can be granted'-was rightly sustained, and we will review the case only as to that ground.

The first suit was instituted in the City Court of Valdosta under the provisions of the Nonresident Motorist Act (Ga.L.1937, p. 732, as amended; Code Ann. Ch. 68-8). The venue section of this Act (Ga.L.1937, pp. 732, 734; 1947, p. 305; 1955, p. 650; 1959, pp. 120, 121; Code Ann. § 68-803) provides: 'All suits or causes of action brought under this Chapter, relating to the use of the highways of this State by nonresident motorists, shall be brought in the county in which the accident, injury, or cause of action originated, or in the county of the residence of the plaintiff therein, as the plaintiff in such suit may elect, if the plaintiff in such suit is a resident of the State of Georgia; and if the plaintiff in such suit is a nonresident of the State of...