Foster v. Lankford, 44575

• Court: Georgia Court of Appeals
• Writing for the Court: HALL; JORDAN, P.J., and WHITMAN
• Citation: Foster v. Lankford, 171 S.E.2d 662, 120 Ga.App. 573 (Ga. App. 1969)
• Decision Date: 31 October 1969
• Docket Number: No. 44575,No. 3,44575,3
• Parties: Billy W. FOSTER v. Donald LANKFORD

Page 662

171 S.E.2d 662

120 Ga.App. 573

Billy W. FOSTER v. Donald LANKFORD.

No. 44575.

Court of Appeals of Georgia, Division No. 3.

Oct. 31, 1969.

Syllabus by the Court

A foreign judgment is entitled to receive the same faith and credit in every other State that is accorded to it in the State where rendered.

The plaintiff sued defendant in Dougherty Superior Court upon a judgment rendered against defendant in the Circuit Court of Benton County, Arkansas. The defendant filed a plea in bar, a demurrer and an answer. In his answer, defendant alleged that he was never legally served in the State of Arkansas or in any other State and had no notice whatsoever of the pendency of the Arkansas suit.

The case was tried without a jury by agreement of both parties under the following stipulation: On December 20, 1963, the plaintiff filed a suit against Billy Foster and Jim Foster for damages arising out of an automobile collision, alleging that plaintiff was a resident of Benton County, Arkansas, and that both defendants ere residents of Ratcliffe, Little River County, Arkansas. The summons was never returned or served by the Sheriff of Little River County, Arkansas. On May 20, 1964, another summons was issued to the sheriff of Little River County, Arkansas, which was never returned or served on either of the defendants. Thereafter, on September 23, 1964, the plaintiff had defendant Billy Foster served under the Nonresident Motorists Act of Arkansas, through the Secretary of State of that Commonwealth. The defendant Jim Foster was never served in any manner whatsoever. On October 8, 1965, default judgment was taken against both defendants, Jim Foster and Billy Foster, in the amount of $2,069.50, based upon the service upon the defendant Billy Foster under the Nonresident Motorists Act of the State of Arkansas. Plaintiff dismissed his action in the Superior Court of Dougherty County, Georgia, against the defendant Jim Foster.

The defendant Billy Foster was a resident of the State of Oklahoma at the time the alleged cause of action accrued in the State of Arkansas. The Nonresident Motorists Act of the State of Arkansas is in all material rights, including the mode of service therein provided, the same as the Nonresident Motorists Act of the State of Georgia. Counsel for both sides agreed as stipulated that, under the pleadings in the Superior Court of Dougherty County, Georgia, the question of jurisdiction of the Arkansas Court rendering judgment is properly raised.

A copy of the Arkansas judgment as well as a copy of the complaint in the Arkansas litigation and a copy of all summonses issued in Arkansas on said complaint including the service upon the defendant Billy Foster under the Nonresident Motorists Act through the Secretary of State of Arkansas, were submitted to the trial court for consideration, and were a part of the stipulation of counsel.

The trial court entered judgment for the plaintiff and the defendant appeals from this ruling.

Smith Gardner, Wiggins, Geer & Brimberry, Peter Zack Geer, Albany, for appellant.

No appearance, for appellee.

HALL, Judge.

It is basic hornbook law that a foreign judgment generally is entitled to receive the same faith and credit in every other State that is accorded to it in the State where rendered; therefore, a foreign judgment is not entitled to full faith and credit where the court rendering it had no jurisdiction over the person. 50 C.J.S. Judgments § 889, p. 473; 30A Am.Jur. 328, § 262.

'In an action brought against a non-resident for injuries sustained in a motor vehicle accident in the state of the forum, wherein service of process is sought or has been effected against the non-resident by substituted service under a non-resident motorist act, it is generally held that the complaint must allege that service of process against the non-resident may be effected pursuant to the non-resident motorist act.' 8 Am.Jur.2d 438, § 886. The Georgia...