Butler v. Winton

• Decision Date: 25 September 1937
• Docket Number: 26347.
• Citation: 192 S.E. 835,56 Ga.App. 443
• Parties: BUTLER v. WINTON et al.
• Court: Georgia Court of Appeals

192 S.E. 835

56 Ga.App. 443

BUTLER v. WINTON et al.

No. 26347.

Court of Appeals of Georgia, First Division

September 25, 1937

Syllabus by the Court.

1. Where a defendant appears and files a plea to the jurisdiction, he does not waive his rights thereunder by also filing a general and special demurrer and an answer in which he expressly reserves his rights under the plea to the jurisdiction. Nor, where this is done, does a waiver of the plea to the jurisdiction result if the defendant insists upon and obtains a ruling of the court on that part of his demurrer that the petition on its face does not affirmatively show jurisdiction of the court of his person, without at that time expressly reserving his right to a hearing on the plea.

2. In the present case, even if any of the conduct of the defendant could be construed in law, when viewed alone, as a waiver of his plea to the jurisdiction, there was evidence before the judge that the defendant had expressly reserved his rights to a hearing on the plea to the jurisdiction; and where the judge so found, this court will not reverse his judgment in refusing to dismiss the plea.

Error from City Court of Thomasville; B. B. Earle, Judge.

Suit by J. N. Butler against Hense Winton and others. To review a judgment overruling plaintiff's motion to dismiss named defendant's motion to quash service and his plea to the jurisdiction and sustaining the motion and plea, plaintiff brings error.

Affirmed.

Jesse J. Gainey and Clifford E. Hay, both of Thomasville, for plaintiff in error.

H. H Merry and Titus & Dekle, all of Thomasville, S. P. Cain, of Cairo, and

p>Page Jas A. Branch, of Atlanta, for defendants in error.

GUERRY Judge.

In March, 1935 J. N. Butler filed suit against Hense Winton, C N. Ragsdale, J. R. Lawhon, and Gus Weill, as joint tort-feasors, returnable to the June term, 1935, of the city court of Thomasville. Ragsdale, Lawhon, and Weill jointly filed a plea to the jurisdiction, a demurrer, and an answer. In June, 1935, Winton filed a motion to vacate and quash the entry of service on him, a plea to the jurisdiction, a demurrer, and an answer. The demurrer (omitting grounds of special demurrer) was as follows: "Now comes the defendant, Hense Winton, and subject to his special appearance and motion to vacate and quash the entry of service, and subject to his plea and objections to the jurisdiction of this court, and not waiving the same but insisting thereon, demurs to the petition of the plaintiff upon the following grounds: 1. Because, under the allegations of the petition, this court is without jurisdiction over this defendant, in that it appears from said petition that the defendant at the time of the filing of the petition and of service upon the defendant was a resident of the State of Tennessee, and the petition nowhere shows that defendant was temporarily in Thomas County, Georgia, under conditions upon which legal service of a suit against him could be made; and the petition does not set out or allege any where therein that the defendant was not in Georgia under conditions and circumstances that would exempt him from suit in a civil action. 2. Defendant demurs generally to the petition, on the ground that the same does not set forth any cause of action against him." The bill of exceptions recites that "on September 10, 1935, said case was reached in its regular order and was called for a hearing on the demurrers." The plaintiff amended his petition, and Ragsdale, Lawhon, and Weill jointly filed their demurrer to the petition as amended, "and the defendant Hense Winton also filed his demurrer to the petition as amended." It does not appear from the record in what respect the plaintiff amended his petition; nor does it appear that Winton's demurrer to the petition as amended was different from the demurrer above quoted. "Said case then proceeded to a hearing on the demurrers therein before said judge, before having any hearing on Winton's motion to vacate and quash the entry of service on him, or on his plea to the jurisdiction; and the demurrers of the defendant's C. N. Ragsdale, J. R. Lawhon, and Gus Weill were sustained in part on September 10, 1935. At the same time the demurrers of the defendant Hense Winton were overruled in part with the consent of counsel for said defendant." The judgment sustaining the demurrers of Ragsdale, Lawhon, and Weill was taken to this court, and was reversed. Butler v. Ragsdale, 53 Ga.App. 810, 187 S.E. 185. After the remittitur of this court was received and the judgment of this court was made the judgment of the court below, the case was called for trial, and "said Hense Winton presented and insisted on the court hearing his motion to vacate and quash the entry of service on him and his plea to the jurisdiction." The motion and the plea to the jurisdiction were substantially that, at the time of the service of said petition and process upon him, the defendant was not a resident of Thomas county or of the State of Georgia; that he was and is a resident of Franklin county, Tenn.; that on the date of service there was pending in the city court of Thomasville a case of J. N. Butler v. Hense Winton, an action of bail trover by Butler against Winton, "and said case was on the calendar for trial in said court on said date. Said city court of Thomasville was actually in session, and movant was in the court-room for the purpose, and solely for the purpose, of attending the trial of said case and of testifying as a witness in his own behalf as defendant in said case, when the deputy sheriff, J. J. Holton, handed him a copy of the petition and process in the case"; and that under these facts the defendant was exempt from service of civil process in any other cause, and therefore the service made upon him was illegal and void.

The plaintiff filed and urged a motion to strike and dismiss the motion to vacate and quash the entry of service and plea to the jurisdiction, "on the grounds that said defendant had waived same and had acknowledged and waived jurisdiction of the court over him by hearing and urging his said demurrer, and having same disposed of in part by consent before urging and insisting on hearing his said plea to the jurisdiction." On the hearing of this motion the plaintiff introduced the demurrer of the defendant, and the order thereon as follows: "The first paragraph of demurrer on question of jurisdiction as to Hense Winton is hereby overruled by consent of attorneys for Hense Winton." The plaintiff introduced also the demurrers of Ragsdale, Lawhon, and Weill, and the order sustaining them in part, as follows: "This demurrer and the demurrer to the original petition having come on for hearing before me at this time, after hearing argument of counsel, it is ordered that the grounds of demurrer raising the question of the jurisdiction as to the defendants, Ragsdale, Lawhon, and Weill are hereby sustained, and the case is dismissed as to said defendants. The other grounds of demurrer and the questions raised thereby are not now passed upon." Plaintiff introduced also the bill of exceptions to this order and judgment, and the remittitur from the Court of Appeals reversing that judgment. C. E. Hay, attorney for the plaintiff, "thereupon stated in his place as such, that, when this case was reached on September 10, 1935, the only thing said about the proper order for disposing of the several issues then raised by the pleadings was a remark by the trial judge, made in all fairness to all parties and their counsel, to the effect that there might be some question as to the proper order for disposing of such questions. No attorney for any party to the case made any reply to the judge's suggestion, or stated his contention with respect to the proper order for disposing of the several questions raised by the pleadings. The demurrers were then heard and disposed of as shown by the record, with counsel for all parties present and taking part in the argument on the demurrers." S. P. Cain, attorney for the defendant, stated: "After demurrers of other defendants had been...