Cutliffe v. Pryse

• Decision Date: 16 November 1938
• Docket Number: 12379.
• Parties: CUTLIFFE v. PRYSE.
• Court: Georgia Supreme Court

200 S.E. 124

187 Ga. 51

CUTLIFFE v. PRYSE.

No. 12379.

Supreme Court of Georgia

November 16, 1938

Certiorari from Court of Appeals.

Suit by Paul Pryse against Ann Cutliffe and another for damages caused by negligent driving of automobile. To review a judgment of the court of appeals, 57 Ga.App. 548, 195 S.E 913, reversing a judgment dismissing the action, the named defendant brings certiorari.

Affirmed. Leonard Farkas & Walter H. Burt, of Albany, for plaintiff in error.

J. N Peacock, Jr., of Albany, for defendant in error.

Syllabus OPINION.

ATKINSON Presiding Justice.

1. 'If a plaintiff shall be nonsuited, or shall discontinue or dismiss his case, and shall recommence within six months such renewed case shall stand upon the same footing, as to limitation, with the original case; but this privilege of dismissal and renewal shall be exercised only once under this section.' Code, § 3-808. This does not apply to void suits. Williamson v. Wardlaw, 46 Ga. 126; Edwards v. Ross, 58 Ga. 147(3); Hamilton v. Phenix Insurance Co., 111 Ga. 875, 36 S.E. 960; Hill v. State, 115 Ga. 833, 42 S.E. 286; Taylor v. State, 160 Ga. 331, 127 S.E. 652. It will apply to suits that are voidable--not wholly void. At lanta, Knoxville & Northern Railway Co. v. Wilson, 119 Ga. 781, 47 S.E. 366; Lamb v. Howard, 150 Ga. 12, 102 S.E. 436. The first mentioned class (suits that are void) includes suits where the petition has been filed but not served upon the defendant. Branch v. Mechanics' Bank, 50 Ga. 413; Ferguson v. New Manchester Manufacturing Co., 51 Ga. 609; McClendon & Co. v. Hernando Phosphate Co., 100 Ga. 219, 28 S.E. 152; Florida Central & Peninsular Railroad Co. v. Ragan, 104 Ga. 353, 30 S.E. 745; Nicholas v. British American Assurance Co., 109 Ga. 621, 34 S.E. 1004; Cox v. Strickland, 120 Ga. 104, 47 S.E. 912, 1 Ann.Cas. 870; Stallings v. Stallings, 127 Ga. 464, 56 S.E. 469, 9 L.R.A.,N.S., 593; First National Bank of Charleston v. Dukes, 138 Ga. 66, 74 S.E. 789; McFarland v. McFarland, 151 Ga. 9(2), 105 S.E. 596; Simmerson v. Herringdine, 166 Ga. 143, 142 S.E. 687. The foregoing decisions do not rule that want of service will void the action where service has been waived by defendant.

2. 'Appearance and pleading shall be a waiver of all irregularities of the process, or of the absence of process, and the service thereof.' Code,§ 81-209. If the petition has been filed and service has been waived by defendant, such waiver as between the parties is the equivalent of service, and the suit under the second class mentioned in the preceding note will not be void.

3. Want of service and non-residence of the defendant are both jurisdictional, but are distinct. Perry v. Tumlin, 161 Ga. 392, 399, 131 S.E. 70. In Stallings v. Stallings, supra, the defendant moved to dismiss the case because no proper and legal service had been made upon him. He also demurred to the petition, filed a plea to the jurisdiction on the ground that he was not a resident of the county, and made answer. It was said in the opinion [page 472]: 'The appearance in this case did not waive service or jurisdiction. If so, a defendant could never raise these questions, for if he appeared to do so he would waive his objection by making it. Appearance and pleading to the merits will waive service, if no objection is made to the want of service. But it does not have that effect where before or at the same time want of service is pleaded. Under our system of practice, both pleas may be filed together without destroying each other. Western & Atlantic R. Co. v. Pitts, 79 Ga. 532, 4 S.E. 921.'

Applying the foregoing principle, though on account of difference in facts a different result will be reached, if there be irregular or insufficient service or no service at all, but the defendant, not objecting to the service or want of service, files a plea to the jurisdiction on the ground of his non-residence in the county, the object of service (opportunity to be heard) becomes accomplished of record in the case. The filing of such plea without objecting to the service or want of service is waiver of service. See generally, on this subject, 6 C.J.S. 65, Appearances, § 22, note 41, citing Brannin v. Clements, La.App., 142 So. 621; Godchaux v. Texas & P. Ry. Co., 151 La. 955, 92 So. 398.

4. If after such waiver the plaintiff dismisses his action in the superior court of ...