Empire Forest Products, Inc. v. Gillis

• Decision Date: 28 September 1987
• Docket Number: No. 74912,74912
• Citation: Empire Forest Products, Inc. v. Gillis, 362 S.E.2d 77, 184 Ga.App. 542 (Ga. App. 1987)
• Parties: EMPIRE FOREST PRODUCTS, INC. v. GILLIS.
• Court: Georgia Court of Appeals

Page 77

362 S.E.2d 77

184 Ga.App. 542

EMPIRE FOREST PRODUCTS, INC. v. GILLIS.

No. 74912.

Court of Appeals of Georgia.

Sept. 28, 1987.

Rehearing Denied Oct. 16, 1987.

G. Thomas Davis, Lela L. Smith, Atlanta, for appellant.

B.W. Walker, McRae, for appellee.

BIRDSONG, Chief Judge.

Jurisdiction--Non-Resident Joint Tortfeasor--Transfer. Pertinently stated, Empire Forest Products, Inc. (Empire) entered into a timber harvesting contract with Willie Gillis. Empire is a resident corporation of Ben Hill County. Gillis' land lies in Telfair County. Empire's agent at the time, Roberson, also is a resident in Telfair County. Roberson was charged with the responsibility of monitoring the faithful and proper execution of the timber harvest. Empire commenced the harvest of trees, being limited by the contract to harvesting trees of nine inches in diameter at breast height. Empire agreed to pay $75,000 for the harvest. After the work commenced, Gillis determined that trees under nine inches diameter at breast height were being harvested and that Empire's harvesters were assertedly using improper clearing procedures, resulting in damage to or destruction of renewal growth. Gillis brought suit in Telfair County against Roberson and Empire as joint tortfeasors. In its answer to Gillis' complaint, Empire denied venue and jurisdiction of the Telfair Superior Court over the cause of action or against Empire personally. During the trial of the issue, Empire sought a directed verdict based upon lack of jurisdiction should a verdict be returned in favor of Roberson. Empire also sought a counterclaim contending that Gillis had prevented a full harvest as contemplated by the contract and sought a recovery of the unearned amount of the $75,000 paid before the harvest commenced. After all the evidence had been completed and the charge of the court given, the jury returned a verdict in favor of Roberson and against Gillis but against Empire and in favor of Gillis. After the verdict in favor of the resident joint tortfeasor but against the non-resident joint-tortfeasor, Empire voluntarily dismissed its counterclaim against Gillis in Telfair County and moved the trial court to transfer the case to Ben Hill County. This motion was denied by the trial court. Empire then moved for a judgment n.o.v. based upon lack of jurisdiction and venue or in the alternative to grant a new trial on the same grounds. This motion also was denied. Empire now brings this appeal asserting four enumerations of error. Held:

1. In its first two enumerations of error, Empire contends the trial court erred in denying its motion for judgment n.o.v. in that the court had no jurisdiction to enter judgment against Empire once the resident joint tortfeasor was dismissed, and in like vein erred in refusing a transfer of the case to Ben Hill County. The only evidence relating to Empire having an office for business in Telfair County was speculation that because Empire stored cut logs on property it had once owned in Telfair County it must have had an office there. Uncontradicted evidence by ex-employees of Empire as well as its president, however, established that in October 1984, Empire sold its property and logging business to Canal Logging Company. Thereafter, Empire had no employees, no property, and no business premises in Telfair County. Thus at the time Gillis' complaint was filed, the uncontradicted relevant evidence demanded the conclusion that Empire was a non-resident of Telfair County. See Myers v. Phillips, 197 Ga. 536, 542, 29 S.E.2d 700; Stepp v. Stepp, 195 Ga. 595(2), 25 S.E.2d 6.

Where joint tortfeasors residing in different counties are sued in the county of one, and on the trial of the case the resident defendant is discharged and a verdict returned solely against the non-resident defendant, the court is without jurisdiction to enter a judgment against the non-resident defendant. Southeastern Truck Lines v. Rann, 214 Ga. 813, 108 S.E.2d 561; Morris v. Bell, 100 Ga.App. 341, 342, 111 S.E.2d 270. In such a case, it is said that where the resident co-defendant is found not liable by the jury, the court's jurisdiction over the non-resident defendant vanishes. Thornhill v. Bullock, 118 Ga.App. 186, 187, 162 S.E.2d 886. However the want of jurisdiction and venue over the action and person may be waived either expressly or impliedly by the conduct of the non-resident defendant. Burger v. Noble, 81 Ga.App. 759, 761, 59 S.E.2d 761. Gillis argues that by its pretrial and trial conduct in the court in Telfair County, Empire has in point of fact and law waived the jurisdictional-venue issue. Moreover, Gillis argues that the motion to transfer was not timely made. Lastly, Gillis urges that Empire maintained an office in Telfair County, a point already rejected in this decision.

We also reject the remaining arguments. It is patent that Empire preserved the issue of jurisdiction and venue in its pleadings and answer. It moved for a directed verdict upon the issue of venue should a verdict be returned in favor of the resident defendant, Roberson. It requested a charge on the issue of lack of venue should a favorable verdict be returned on behalf of...