Focht v. American Cas. Co., 38690
| Decision Date | 08 February 1961 |
| Docket Number | No. 38690,No. 1,38690,1 |
| Citation | 118 S.E.2d 737,103 Ga.App. 138 |
| Parties | Ruby A. FOCHT v. AMERICAN CASUALTY COMPANY |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. Section 1-A of the Ga.L.1957, pp. 649-651, which provides for service through the Secretary of State upon a resident who lived in the state at the time of an accident creating a cause of action, but who moved outside the state before the action was instituted, may not be applied retroactively. The express enumeration in Section 4 of the act that Section 3 affects matters of procedure only and shall apply to all causes of action whether now in existence or arising after the passage of the act, indicates the intent of the General Assembly to have been that the other portions of the act were not to be given a retroactive effect.
2. As Section 1-A of the amendment to the statute creates a new right, this section of the statute as amended may not be given a retroactive effect.
The plaintiff below brought this action against Clarence L. Wright, Jr., with the defendant American Casualty Company, as garnishee. The garnishment arose out of a prior judgment rendered by default in favor of the plaintiff on a cause of action arising out of an automobile collision which occurred on December 12, 1955. At the time of this collision, Wright was a resident of Atlanta, Fulton County, Georgia, but prior to the time the action for damages was brought against him he had moved away from the state and county and was allegedly residing in the State of Florida.
By stipulation between the parties, it was agreed that no personal service was ever rendered in the action against Clarence L. Wright, Jr. The plaintiff contends that service upon the Secretary of State of Georgia was valid and legal and conferred jurisdiction upon the defendant Wright because of the act of the General Assembly approved March 13, 1957 (Ga.L.1957, pp. 649-651), Code § 68-808. The garnishee contends that this act has no application and that the judgment rendered against Wright is absolutely void because (a) no valid service of process was ever at any time made on the defendant Wright; (b) Wright never appeared in the action; (c) the copy of the complaint and summons mailed by the Secretary of State of Georgia was received by a different person; and (d) the defendant Wright who was insured by the garnishee was never notified of the pendency of the action.
The garnishee filed an answer denying indebtedness to Wright, which answer was traversed by the plaintiff, the contention of the plaintiff being that the garnishee is liable under the judgment rendered against Wright in the previous action. After due hearing, the trial judge overruled and denied the traverse of the plaintiff to the answer of the garnishee, and ordered the garnishee discharged, to which order exception was taken.
Scott Walters, Jr., East Point, for plaintiff in error.
Smith, Field, Ringel, Martin & Carr, H. A. Stephens, Jr., Atlanta, for defendant in error.
At the time of the prior suit against the defendant Wright, the statute providing for jurisdiction of suits against nonresidents, Code Ann. Ch. 68-8, did not contain any provision for jurisdiction to be obtained by service on the Secretary of State where the defendant was a resident of the state at the time of the accident or collision but ceased to be a resident prior to the service of any summons or other lawful process. Ga.L.1957, pp. 649-651, amended the law so as to provide for service through the Secretary of State upon a resident who lived in the State at the time of an accident creating a cause of action, but who moved outside the State before the action was instituted. Code Ann. § 68-808. This amendment to the law came almost one and a half years after the collision out of which the judgment in favor of the plaintiff was rendered. The garnishee's contention is that this subsequent statute cannot be given a retrospective operation so as to apply to the right of the plaintiff against the defendant Wright. It is, of course, essential to the rendition of a judgment against the garnishee that there be a valid existing judgment between the plaintiff and defendant Wright in the prior action. Ingram v. Jackson Mercantile Co., 2 Ga.App. 218, 58 S.E. 372. If the 1957 amendment to the Non-Resident Motorists Act does not apply retroactively, then the judgment was void and the garnishee was properly discharged by the trial court.
1. Code § 102-104 provides, 'Laws prescribe only for the future; they cannot impair the obligation of contracts, nor, usually, have a retrospective operation * * *' This is the general rule of statutory...
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