Drake v. Chesser
| Decision Date | 22 January 1973 |
| Docket Number | 27552,Nos. 27551,s. 27551 |
| Citation | 196 S.E.2d 137,230 Ga. 148 |
| Parties | George DRAKE v. Ruth W. CHESSER et al. LABORERS INTERNATIONAL UNION OF NORTH AMERICA, LOCAL NO. 438 v. George DRAKE et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. The Act of 1959 (Ga.L.1959, pp. 44, 45; Code Ann. § 3-120), which fixes the venue for actions against unincorporated associations, is not unconstitutional.
2. The trial court erroneously concluded that the union was not doing business in Clarke County as a matter of law at the time the suit was filed.
Guy B. Scott, Jr., Athens, for appellant.
Heard, Leverett & Adams, E. Freeman Leverett, Elberton, for appellees.
At issue here is whether the Act of 1959 (Ga.L.1959, pp. 44, 45; Code Ann. § 3-120), which fixes the venue for actions against unincorporated associations, is unconstitutional because it conflicts with Art. VI, Sec. XIV, Par. VI (Code Ann. § 2-4906), providing for venue in civil cases; and also whether a union was 'doing business' in Clarke County by the terms of that Act.
The case arose as an action for damages brought by George Drake in the State Court of Clarke County on February 8, 1971, against the Laborers International Union of North America Local No. 438 and Ruth W. Chesser, as executrix of the estate of Julian D. Chesser.
The complaint alleged, insofar as necessary to recite here, the following facts: that on September 30, 1970, the plaintiff Drake was riding as a guest passenger in an automobile driven by the deceased, Julian D. Chesser, a business representative of the defendant union; that Chesser negligently failed to stop at a stop sign at an intersection on U.S. Highway 29, driving at a high rate of speed into another car and striking it with extreme force and violence; that this collision was the cause of death of Chesser and the driver of the other car and seriously injured the plaintiff Drake; and that he is entitled to a specified amount of monetary damages.
Jurisdiction for the action was alleged to be pursuant to Code Ann. §§ 3-118, 3-119, 3-120 and 3-121 (Ga.L.1959, pp. 44, 45) because Chesser was the business representative of the defendant union, which was located at a given address in Athens, Georgia; that Chesser did business in Clarke County as agent for the union; and also because the union, located at a stated address in Atlanta, Georgia, did business in Clarke County.
Special pleas to the jurisdiction were filed by both defendants.
Following the taking of depositions, a motion for summary judgment as to Chesser's executrix was granted. She was dismissed as a party defendant because the action against the estate was filed before the expiration of one year from the date of her qualification, contrary to Code § 113-1526.
The court overruled the union's motion to dismiss for lack of jurisdiction, finding that there were issues of fact for a jury on this question. The case then proceeded to trial on this issue before a jury on June 19, 1972, whereupon the union filed another motion to dismiss alleging the venue statute (Code Ann. § 3-120) to be repealed and unconstitutional. This motion was also overruled.
After evidence was presented both sides made motions for directed verdict. The court granted the union's motion and overruled that of the plaintiff Drake, who thereupon filed his notice of appeal to the Court of Appeals.
Following certification for immediate review of the order overruling the union's motion to dismiss challenging the venue statute, it filed a notice of cross appeal. The case was then transferred to this court by the Court of Appeals because of the constitutional issue in the cross appeal.
The union's motion to dismiss involved here was based upon three grounds. However, only one which raises a constitutional issue has been argued before this court, and therefore the other grounds are deemed to have been abandoned.
This motion to dismiss urges in substance that Section 4 of the Act providing for actions by or against unincorporated organizations or associations (Ga.L.1959, pp. 44, 45; Code Ann. § 3-120), which recites in essential part that 'Such action may be maintained in any county where such organization or association does business or has in existence a branch or local organization,' is unconstitutional. It is insisted that this section is contrary to the Georgia Constitution (Art. VI, Sec. XIV, Par. VI; Code Ann. § 2-4906), which declares that except for certain enumerated actions not involved here, 'All other civil cases shall be tried in the county where the defendant resides,' because said Act does not provide for suit against an unincorporated association or organization in the county where such organization resides, but purports to authorize suit in any county where such organization does business or has an office, contrary to the constitutional provision.
The union contends that since corporations are artificial persons created by law, the state, as creator, may by statute define more than one corporate 'residence' for purposes of suit; but that an association of natural persons is not an artificial creature of the law and therefore does not owe its existence to an Act of the General Assembly within which venue may be defined. Instead, it is argued that the common law principle of venue as to corporations, in the absence of special statutes, should be applied so that venue is in the county where the principal office or place of business is situated. See Sprinkle Distilling Co. v. Southern Express Co., 141 Ga. 21, 22, 80 S.E. 288.
In our view, however, this argument is not valid.
In an early case this court declared that the General Assembly has the power to define the residence of natural persons as well as artificial persons. Davis v. Central R. & Banking Co., 17 Ga. 323, 335. Since then, a long line of decisions has upheld the constitutionality of statutes fixing venue for actions against railroads, public utilities and corporations. See, e.g., Dependable Insurance Co. v. Gibbs, 218 Ga. 305, 310, 127 S.E.2d 454 and cases cited.
In our view, this rule is equally applicable to unincorporated associations. ...
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Mitchell v. Volkswagen Group of Am. Inc.
...county where each resides, and to fix a venue in order to bring an action against the association as a whole.” Drake v. Chesser, 230 Ga. 148, 152, 196 S.E.2d 137, 140 (1973). This stated purpose suggests that the statute is intended to facilitate suing a group of individual persons, not ind......
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Devito v. Devito, S06A0341.
...actions under the UCCJEA in the court that made the initial child custody determination. See generally Drake v. Chesser, 230 Ga. 148, 152(1), 196 S.E.2d 137 (1973) (Art. VI, Sec. II, Par. VI simply prescribes that suits must be brought in county of defendant's residence; the residence of pe......