Hatcher v. Georgia Farm Bureau Mut. Ins. Co.
| Decision Date | 23 November 1965 |
| Docket Number | Nos. 41500,No. 2,41527,s. 41500,2 |
| Citation | 146 S.E.2d 535,112 Ga.App. 711 |
| Parties | Mrs. J. A. HATCHER v. GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY. GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY v. Mrs. J. A. HATCHER |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. (a) Failure of the officer serving a copy of petition and process to enter on the copy at the time of service a notation of the date service was made and sign it does not invalidate the service if it is otherwise legally made.
(b) The filing of a general demurrer to a petition is an appearance which effects a waiver of all defects in the process or service thereof.
2. An attorney is authorized to bind his client in consenting to the entry of an order continuing in effect a temporary restraining order.
3. The petition fails to show the existence of a justiciable controversy between the parties and therefore fails to show an entitlement on the part of the petitioner to a declaratory judgment. It was subject to the general demurrer filed thereto.
4. It is error to overrule a motion to dismiss special demurrers which were filed after the time provided in Code § 81-301.
William C. Turner, a traffic policeman in the City of Albany, brought a damage action in the City Court of Albany against Mrs. J. A. Hatcher alleging that he had suffered injuries when the defendant's son, driving a family purpose automobile, turned onto an unpaved road and stirred up a cloud of dust in an effort to escape arrest for speeding and reckless driving, making visibility so poor that plaintiff was unable to see and avoid rough places in the road and was thrown from the motorcycle. Mrs. Hatcher carried public liability insurance with Georgia Farm Bureau Mutual Insurance Company, by the terms of which both she and her son were insured, and she gave proper notice of Turner's claim and suit, demanded that the company defend it, and employed personal counsel to defend her interest. Before any defensive pleadings were filed in the damage action the insurance company, employing its own counsel brought an action for declaratory judgment in Dougherty Superior Court, seeking to have it adjudged that by reason of an exclusion in the policy 1 no liability could arise on its part for any damages that Mrs. Hatcher or her son might be required to pay on account of Turner's injuries and that there was no obligation on its part to defend the action. Mrs. Hatcher, her son and Turner were all named as defendants in the declaratory judgment action, and all were served personally with copies of the petition, process and an order of court April 8, 1965, the day the suit was filed. The order attached temporarily restrained and enjoined Turner and Mrs. Hatcher from prosecuting or defending the case in the city court and directed them to show cause on May 10 why they should not be restrained and enjoined as prayed until such time as the declaratory judgment action should be determined.
On April 30 Mrs. Hatcher's attorneys filed on her behalf general demurrers to the declaratory judgment action. On May 6 counsel for Mrs. Hatcher, for Turner and for the insurance company consented in writing to the grant of an order by the court reciting: 'The defendants, William C. Turner and Mrs. J. A. Hatcher, having agreed and consented to be restrained and enjoined from the further prosecution or defense of Case No, 14005 in the City Court of Albany until such time as the instant suit for declaratory judgment shall have been determined, it is ordered that they are hereby restrained and enjoined' therefrom, dispensing with the necessity for the hearing set for May 10.
On May 21 Mrs. Hatcher, being dissatisfied with the attorneys whom she had employed, discharged them and employed another, filing a notice of her change of counsel with the court in the declaratory judgment action. The following day her new counsel filed a motion to quash the process on the ground that there was 'no entry of the serving officer set forth below' upon the copy of the petition or process served upon her as provided in Code § 81-202, a plea and motion to vacate the consent order on the ground that the attorneys who had entered into the consent had no authority from her to do so, and additional demurrers which, though designated as 'general and special' demurrers, were in fact all special demurrers.
The insurance company then filed a motion to dismiss the motion to quash, a motion to dismiss the special plea and motion to vacate the consent order, and a motion to dismiss the demurrers on the ground that these demurrers had not been timely filed.
After hearing, on June 1 the court entered orders dismissing the motion to quash and the special plea and motion to vacate the consent order. On June 26 an order was entered overruling the motion to dismiss the demurrers and in the same order overruled them on their merits and overruled the general demurrers filed April 30 by Mrs. Hatcher's original attorneys.
Mrs. Hatcher now excepts to the orders dismissing her motion to quash, dismissing her special plea and motion to vacate the consent order, overruling her general demurrers filed April 30, and overruling her additional demurrers filed May 22.
By way of cross bill the insurance company excepts to the order overruling its motion to dismiss the demurrers filed May 22.
Frank F. Faulk, Jr., Albany, for plaintiff in error.
Watson, Keenan, Spence & Lowe, Frank H. Lowe, Jr., Albany, for defendant in error.
1. The motion to quash process. The process annexed to the petition for declaratory judgment was in full conformity with the provisions of Code Ann. § 81-201, requiring answer to be made within 30 days from the date of service. The suit was filed April 8 and copies of the petition, process and court order in connection therewith were delivered that day to the sheriff or his deputy for service. On the same day the deputy sheriff delivered a copy of the petition, process and order to each of the named defendants personally, and entered on the original petition a return of personal service as to all of them.
Mrs. Hatcher moved to quash the process because the deputy did not, at the time of service, enter on the copy delivered to her a notation, as provided in Code Ann. § 81-202, showing the date of service and sign it.
Immediately following the provision for this notation in the Code section it is asserted: 'Provided, however, that the failure of the copy served on the defendant to show thereon a date of service signed by the officer serving shall not invalidate any service otherwise legally made.' This is sufficient basis for sustaining the dismissal of the motion to quash, for it is not contended that the service was not 'otherwise legally made.' Moreover, when she demurred generally to the petition on April 30 without raising any question as to the jurisdiction of the court over her person by reason of any failure of or defect in the service, she waived any defect or irregularity in the process,--even a lack of process, and the service thereof. Code § 81-209; Savannah, F. & W. R. Co. v. Atkinson, 94 Ga. 780(2), 21 S.E. 1010; Southern Ry. Co. v. Cook, 106 Ga. 450(3), 32 S.E. 585. It is to be noted that she insisted upon the sustaining of these demurrers in the trial court and excepts to the overruling of them here.
2. The special plea and motion to vacate the consent order. In this special plea Mrs. Hatcher urges that she is a widow, unskilled in the conduct of lawsuits and that although she did employ the attorneys who entered into the consent order on her behalf, they did it without her knowledge and without specific authority from her to do so. For that reason she asked the court to vacate the order which continued in effect the temporary restraining order against prosecution or defense of the damage action until the declaratory judgment action could be concluded.
'Attorneys have authority to bind their clients in any action or proceeding, by any agreement in relation to the cause, made in writing, and in signing judgments, entering appeals, and by an entry of such matters, when permissible, on the dockets of the court; and attorneys, who are otherwise authorized by law to take affidavits and administer oaths, shall not be disqualified to take affidavits required of their clients in any matter or proceeding of any nature whatsoever.' Code Ann. § 9-605.
No fraud is charged against her counsel by Mrs. Hatcher, and no facts were pleaded by which any fraud could be shown. It is well settled that an attorney may consent and bind his client in a situation of this kind. Adkins v. Bryant, 133 Ga. 465, 66 S.E. 21, 134 Am.St.Rep. 211; Brannan v. Mobley, 169 Ga. 243(6), 150 S.E. 76; Elliott v. Elliott, 184 Ga. 417, 191 S.E. 465; Howell v. Howell, 188 Ga. 803, 4 S.E.2d 835; Petty v. Complete Auto Transit, Inc., 215 Ga. 66(1), 108 S.E.2d 697; Rooke v. Day, 46 Ga.App. 379(1), 167 S.E. 762.
3. The general demurrers filed April 30. These demurrers, all general, were filed by Mrs. Hatcher's original counsel and were overruled June 26, after the new attorney came into the case invoking a hearing on all her motions, demurrers and plea. She now urges that the overruling of these demurrers was error and that they should have been sustained. We agree.
The petition for declaratory judgment, brought under the Declaratory Judgment Act (Code Ann.Ch. 110-11), quotes the pleadings in the damage action against the policyholder, alleges that the son, as well as Mrs. Hatcher, was a named insured under the terms of the policy and that Mrs. Hatcher, the policyholder, has called upon the petitioner to defend the damage suit, alleges the terms of the exclusion clause of the policy, 'This policy does not apply under Part I: * * * (k) to bodily injury or property damage arising from or caused by the insured's attempt * * * to resist arrest or flee from justice,' and alleges as a fact that on the occurrence in...
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