Hatfield v. Leland
| Decision Date | 30 September 1977 |
| Docket Number | No. 54290,No. 3,54290,3 |
| Citation | 239 S.E.2d 169,143 Ga.App. 528 |
| Parties | Hugh A. HATFIELD v. Mary W. LELAND |
| Court | Georgia Court of Appeals |
Joe Salem, Donna J. Salem, Atlanta, for appellant.
Kiser, Rosser & Crossett, Eugene R. Kiser, Atlanta, for appellee.
Hatfield was sued in the Superior Court of Fulton County on a two-count petition involving the same transaction, count 1 being for simple negligence and count 2 being based on a wilful and malicious tort. The petition alleged in count 1 only that Hatfield resided at 7080 Brandon Mill Road, N.W., Atlanta, Fulton County, Georgia. He was served at that address. The case became in default and count 2 only was submitted to the jury on the issue of damages. A verdict was returned for the plaintiff. Defendant then filed a motion to set aside the judgment based thereon, which itself recited that the case had come on for trial after being in default over 45 days and after having appeared on the trial calendar published in the Fulton County Daily Report. The sole ground of the motion to set aside is that the complaint (meaning that count submitted to the jury) "shows on its face that no claim against the defendant exists (because) Count II fails to contain or plead any facts upon which the court's venue depends." The motion was overruled and defendant appeals. Held :
A motion to set aside a judgment may be "based upon lack of jurisdiction over the person . . . regardless of whether such lack of jurisdiction appears upon the face of the record or pleadings." Code Ann. § 81A-160(d). Appellant, however, makes no claim of lack of jurisdiction of his person but merely contends that count 2 taken by itself fails to allege venue. "Venue is not a jurisdictional question but a procedural one." 77 Am.Jur.2d 832, Venue, § 1; State ex rel. Chemical Tank Lines v. Davis, 141 W.Va. 488, 93 S.E.2d 28. The venue of this action is the county wherein the defendant resides. Code § 3-201. It, like lack of jurisdiction of the person, may be waived. McGuire v. Associates Capital Services Corp., 133 Ga.App. 408, 210 S.E.2d 862. This applies equally to defendants whose cases are in default as to those who have appeared and answered. ...
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Harry S. Peterson Co., Inc. v. National Union Fire Ins. Co.
...held that, as between counties in the same jurisdiction, venue statutes relate to procedure, not jurisdiction. Compare Hatfield v. Leland, 143 Ga.App. 528, 239 S.E.2d 169. If venue is a matter of procedure in this case then under the rule of lex loci fori, procedural questions are determine......
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Republic Title Co. v. Andrews, A18A1205
...claim in this regard, she also cites Middlebrooks v. Daniels , 129 Ga. App. 790, 201 S.E.2d 338 (1973) and Hatfield v. Leland , 143 Ga. App. 528, 239 S.E.2d 169 (1977) as supporting authorities. Neither case has any relevance here. In Middlebrooks , we merely held that the plaintiff’s alleg......
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Belans v. Bank of Am.
...is barred; however, waiver occurs if the defense is not urged until after an award or judgment has been made); Hatfield v. Leland, 143 Ga.App. 528, 529, 239 S.E.2d 169 (1977) (a party may not allow a case to be tried on the merits before coming in with a technical defense). Judgment affirme......
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Euler-Siac S.P.A. v. Drama Marble Co., Inc.
...time. See OCGA § 9-11-12(h)(1)(B); Maalouf v. Knight, 237 Ga.App. 509, 510-511 (1), (2), 515 S.E.2d 650 (1999); Hatfield v. Leland, 143 Ga.App. 528, 529, 239 S.E.2d 169 (1977).5 Although a motion to set aside judgment for lack of jurisdiction may be filed at any time pursuant to OCGA § 9-11......