DeJarnette Supply Co. v. F. P. Plaza, Inc.

• Decision Date: 10 October 1972
• Docket Number: No. 27466,27466
• Citation: 229 Ga. 625,193 S.E.2d 852
• Parties: DeJARNETTE SUPPLY COMPANY v. F. P. PLAZA, INC., et al.
• Court: Georgia Supreme Court

Page 852

193 S.E.2d 852

229 Ga. 625

DeJARNETTE SUPPLY COMPANY v. F. P. PLAZA, INC., et al.

No. 27466.

Supreme Court of Georgia.

Oct. 10, 1972.

Rehearing Denied Oct. 23, 1972.

Poole, Pearce, Cooper & Smith, Walter G. Cooper, Atlanta, for appellant.

Smith, Cohen, Ringel, Kohler, Martin & Lowe, William G. Grant, Atlanta, Charles F. Reeves, East Point, for appellees. Syllabus Opinion by the Court

NICHOLS, Justice.

On May 1, 1970, a default judgment was rendered in the Civil Court of Fulton County against Mt. Pleasant Plaza, Inc., a corporation that later merged into F. P. Plaza, Inc. On July 28, 1970, the present complaint was filed to have the default judgment in favor of The DeJarnette Supply Company set aside because of a lack of service of process. On the hearing of the issue thus made the trial court, hearing the case without the intervention of a jury, rendered a judgment setting aside the default judgment because of a lack of service and lack of jurisdiction of the court over the defendant in the original action which had resulted in the default judgment. Thereafter, a motion for new trial as amended was overruled and the present appeal filed. The default judgment arose out of a claim of lien for materials furnished for the improvement of real estate owned by Pleasant Plaza, Inc., and was for more than $300. The only service of process made in the original action was made by leaving a copy with the wife of the president of the defendant corporation at their residence. Held:

1. 'The attack on the 1954 judgment on the ground that it is void is not barred by the statute of limitation since, under the Georgia statute, Code §§ 110-701, (81A-160), 110-709, a void judgment 'is a mere nullity, and may be so held in any court when it becomes material to the interest of the parties to consider it,' and, it is not barred by laches.' Mason v. Carter, 223 Ga. 2(2), 153 S.E.2d 162.

2. Where there has been no legal service on the defendant and no waiver of service, the court has no jurisdiction to enter any judgment in the case unless it be one dismissing the case for lack of jurisdiction. See Foster v. Foster, 207 Ga. 519(3), 63 S.E.2d 318 (dissents upon other grounds), and cits.

3. The Act providing for rules of practice and procedure for the Civil Court of Fulton County provides in part: 'Where the amount sued for, or the value of the property sued for or claimed, or the amount of the lien sought to be enforced either by the plaintiff or the defendant is $300 or more, exclusive of interest, attorneys' fees and cost, the pleadings and the rules of practice and procedure in such cases shall be in conformity with the pleadings and the Rules of Practice and Procedure now in force or which may hereafter be put in force in the Superior Courts of the State of Georgia and the defendant shall...