Dunn v. Dunn

• Decision Date: 13 September 1965
• Docket Number: No. 23055,23055
• Citation: 144 S.E.2d 758,221 Ga. 368
• Parties: Gary Francis DUNN v. Arviner Gosnell DUNN.
• Court: Georgia Supreme Court

Page 758

144 S.E.2d 758

221 Ga. 368

Gary Francis DUNN v. Arviner Gosnell DUNN.

No. 23055.

Supreme Court of Georgia.

Sept. 13, 1965.

Rehearing Denied Oct. 7, 1965.

Syllabus by the Court

1. There must be personal service of motions for new trial unless service is waived, and where as here there was no waiver of service and service was purportedly by mail, there was no proper service of the motion for new trial.

2 (a). There being no service or waiver of service of the motion for new trial, the court was without jurisdiction, and its judgment on the motion was void and thus defendant was not precluded from attacking the proceeding by his motion to vacate and set aside the judgment.

(b). The motion to vacate and set aside the judgment was not barred by the statute of limitation, as the statute requiring that action to set aside judgments should be brought within three years is not applicable where the attack is on the ground that the judgment is void for lack of jurisdiction of a party to the judgment; and, as equity follows the law, which imposes no limitation on the attack made, the equitable doctrine of laches cannot be applied.

3. The court having jurisdiction of the parties and the subject matter, the judgment, based upon a verdict of a jury when the statute provided that it be tried by the judge, was not void but merely one based upon an irregular proceeding; and, plaintiff having procured the judgment is not now permitted to assume a contrary position and is estopped to question the validity of the judgment on that ground.

4. The original judgment awarding plaintiff a divorce and alimony became final and binding upon the failure to serve the motion for new trial and all proceedings subsequent to said judgment were nugatory and void.

Claude Hambrick, Atlanta, for plaintiff in error.

Grant, Spears & Duckworth, William G. Grant, Atlanta, for defendant in error.

MOBLEY, Justice.

This case was originated by a petition filed in Fulton Superior Court by Mrs. Arviner Gosnell Dunn against Gary Francis Dunn on July 17, 1959 seeking a divorce and alimony. The issues were submitted to a jury which returned a verdict granting the plaintiff, defendant in error here, a divorce and awarding her alimony in a lump sum of $500. Judgment was rendered on the verdict of October 23, 1961. On November 21, 1961 plaintiff filed a motion for new trial and rule nisi on the general grounds. Plaintiff's new attorney, who had not participated in the trial of the case, filed the motion and served plaintiff in error, defendant, by mail. The following 'Certificate of Service' appears on the motion: 'This is to certify that I have this day served defendant for the opposite party in the foregoing matter with a copy of this pleading by depositing in the United States mail a copy of same in a properly addressed envelope with adequate postage thereon.--This 21st day of November, 1961 * * * (signed by the attorney for plaintiff).' Subsequently, on December 15, 1961, plaintiff filed an amended motion for new trial on a special ground. It too, showed that it was served by mail and there was affixed to it a 'Certificate of Service on Amendment Motion' substantially like the certificate cited above. This certificate was dated December 1, 1961. On December 15, 1961 the court granted a new trial. The court, without a jury, rendered a final judgment on April 23, 1962, awarding plaintiff a divorce and permanent alimony consisting of $1,500 to be paid instanter and $200 payable monthly until her remarriage or death. On April 23, 1965, defendant filed a motion in Fulton Superior Court to set aside and vacate the alleged final judgment and decree of the court of April 23, 1962, alleging that he was never served personally with either the original motion for new trial and rule nisi or the amended motion for new trial; that he has never waived service; that the motion shows on its face that the only purported service of same upon defendant was by mail which is not in compliance with the law of Georgia. The lower court overruled the motion to set aside the prior judgment. Defendant excepts to this ruling.

1. Plaintiff, defendant in error, contends that the motion to set aside the verdict is barred by the statute of limitation which is three years; that defendant is in any event, barred by laches since he had actual knowledge of the first judgment of October, 1961 since May, 1962; that the first judgment is void because it was illegally tried by a jury and that it was therefore immaterial that the motion for new trial was not served, and; that the motion for new trial does not become void until dismissed.

In our view of this case, the determinative question is whether legal service of the motion for new trial was made upon defendant. Code § 70-306 states that, 'In all applications for a new trial the opposite party shall be served with a copy of the rule nisi, unless such copy is waived.' Unless some other mode of service is prescribed by statute, there must be personal service; accordingly, personal service is required of motions for new trial unless service is waived. Atwood v. Hirsch, 123 Ga. 734, 51 S.E. 742; Baldwin v. Baldwin, 116 Ga. 471, 472, 42 S.E. 727; Braziel v. Hunter, 103 Ga.App. 854, 121 S.E.2d 39; Jones v. Fox, 49 Ga.App. 573, 176 S.E. 530; Mason v. Royal Indemnity Co., 5 Cir., 123 F.2d 335, 336.

Waiver results where the party appears and pleads to the merits, Town of Fairburn v. Brantley, 161 Ga. 199, 200, 130 S.E. 67, or where he appears and argues matters collateral to the motion in a manner to indicate that the party must have been served, or must have waived service. Baldwin v. Daniel, 69 Ga. 782. An acknowledgment of service prior to the filing of a motion for new trial and rule nisi coupled with a subsequent acknowledgment of an order continuing the hearing on the motion was held in Trammell v. Throgmorton, 210 Ga. 659, 82 S.E.2d 140 to constitute a waiver of service.

Here, the only service of the motion for new trial and the amended motion was by mailing the motions to defendant. As service by mail does not constitute personal service, it is wholly inadequate in this case. It is no service at all. Contrary to plaintiff's contention, it is immaterial and does not provide proper service that defendant actually received the motions through the mail or, in some way, learned of the filing of the motion for new trial and the amendment thereto. Piggly-Wiggly Ga. Co. v. May Investing Corp. Inc., 189 Ga. 477, 479-480, 6 S.E.2d 579, 126 A.L.R. 1465; Davis v. Comer & Co., 108 Ga. 117, 119, 33 S.E. 852; Payne v. Moore Finance Co., 87 Ga.App. 627, 74 S.E.2d 746; Carroll v. Muller, 31 Ga.App. 209, 120 S.E. 548. Furthermore, so far as the record shows he did not know of the filing of the motion for new trial until sometime after the date of the second judgment.

There are no facts appearing from the record to show a waiver of service. Defendant made no appearance whatsoever and there is no other conduct on his part from which a waiver might be inferred.

2. (a). Where there is no service or waiver thereof, the court is without jurisdiction and its judgment is void, not merely voidable, and may be attacked in any court where such judgment is attempted to be enforced. Code § 110-709; McBride v. Bryan, 67 Ga. 584(3); Hobby v. Bunch, 83 Ga. 1(5), 10 S.E. 113; Winn v. Armour & Co., 184 Ga. 769, 193 S.E. 477; Lott v. Lott, 207 Ga. 34, 35(1), 59 S.E.2d 912; Foster v. Foster, 207 Ga. 519(3), 63 S.E.2d 318; Hagan v. Hagan, 209 Ga. 313(2), 72 S.E.2d 295. Plaintiff relies upon the decision in Town of Fairburn v. Brantley, supra, wherein this court held that a motion for new trial did not become void for lack of service until actually dismissed and the supersedeas contained in the motion was of full force and effect until such dismissal. There, the movant in the motion for new trial sought to have the motion declared void, so that the supersedeas could not have the effect of extending the pendency of the motion until October 15, 1921, which was within the statute of limitation period of seven years of the suit filed in 1923 seeking to have a tax fi fa paid off by the movant.

Here, it is the respondent who is attacking the motion for new trial and the judgment thereon. Having never been served nor having waived service he is not in the same position as the movant. The new trial was granted and there was a jury verdict and judgment rendered thereon. The defendant cannot be legally charged with any knowledge of these proceedings. Certainly, he cannot now be required to move to dismiss the motion after verdict and judgment. See Code § 3-510; Waldor v. Waldor, 217 Ga. 496, 123 S.E.2d 660; Merchants' Bank of Macon v. Rawls, 7 Ga. 191(4); Harris v. McDaniel, 92 Ga.App. 299, 88 S.E.2d 442. Thus he is not precluded from attacking the entire proceedings by his motion to set aside and vacate the judgment on the ground that they were void at their inception for want of service.

(b). Plaintiff's contention that defendant's motion to vacate and set aside is barred by the statute of limitation is without merit. 'Code, § 3-702, which provides that actions to set aside judgments should be brought within three years from the rendition of such judgments, is not applicable where the attack is made upon a judgment on the ground that it is void for lack of jurisdiction of a party to such judgment.' Foster v. Foster, 207 Ga. 519(5), 63 S.E.2d 318, supra. But see Homburger v. Homburger, 213 Ga. 344(1), 99 S.E.2d 213. Further, defendant is not barred by laches since he has the legal remedy under Code § 110-709 to set aside a void judgment at any time. Equity follows the law (Code § 37-103; Code § 3-712) and since the attack made is not barred by law the equitable doctrine of laches cannot be applied. Ellis v. Smith & Bussey, 112 Ga. 480, 482, 37 S.E. 739; Wyche v. Greene, 11 Ga. 159, 160; Caldwell v. Montgomery, 8 Ga. 106; Louther v. Tift, 20 Ga.App. 309, 93...