Holloway v. Frey, 48652

Decision Date18 October 1973
Docket NumberNo. 1,No. 48652,48652,1
Citation202 S.E.2d 845,130 Ga.App. 224
PartiesJ. B. HOLLOWAY v. R. H. FREY
CourtGeorgia Court of Appeals

Long & Pierce, Nick Long, Jr., Atlanta, for appellant.

McCurdy, Candler & Harris, George H. Carley, Decatur, for appellee.

Syllabus Opinion by the Court

DEEN, Judge.

1. 'The judge of a court having (no) jurisdiction of the person . . . is a mere nullity, and may be so held in any court when it becomes material to the interest of the parties to consider it.' Code § 110-709. 'To bind a party by the judgment, . . . it must appear that he has been served with process directed to him, or else that he has, by some express or implied waiver, dispensed with the necessity of process.' Frank Adam Electric Co. v. Witman, 16 Ga.App. 574(2), 85 S.E. 819. 'A judgment against a party where there has been no valid service upon him, and no waiver of service, is void.' Foster v. Foster, 207 Ga. 519(3), 63 S.E.2d 318.

In the present case filed in the Superior Court of DeKalb County the plaintiff Frey sued on Farmer, an alleged resident of Cobb County, and the appellant Holloway, allegedly residing at 3409 Regalwoods Dr., DeKalb County, seeking judgment of more than $15,000. A return of service dated August 17, 1970 signed by a deputy sheriff states: 'I have this day served the defendant Jack B. Hollaway by serving daughter Jackie by leaving a copy of the within writ and process at his most notorious place of abode in this courty.' The return fails to specify where this was done. During the periods of time in question Holloway did not live at Regalwoods Drive, the address shown in the petition. His minor daughter Jackie lived with her mother, on Valley Bluff Drive, the parents being separated, and it was here that the deputy sheriff delivered the suit papers, although the defendant had never lived at the address and the daughter gave an affidavit that she had so informed the officer. Holloway in fact lived at an address on Buford Highway, also in DeKalb County, and worked at an address in Cobb County. The attorney for the plaintiff, learning of the manner in which service had been attempted, thereafter sent an office employee to Cobb County who personally delivered a copy of the action to the defendant, but who had no authorization from any source to serve suit papers.

It follows that the Superior Court of DeKalb County had no jurisdiction of the person of the defendant Holloway which would authorize the taking of a default judgment against him. The service was not made either by personal delivery to the defendant by a person authorized to serve suit papers under Code Ann. § 81A-104(c) or 'by leaving copies thereof at his dwellinghouse or usual place of abode with some person of suitable age and discretion then residing therein' or delivering it to an agent, as required by Code Ann. § 81A-104(d, 7). The service was thus completely nugatory. Boyer v. King, 129 Ga.App. 690, 200 S.E.2d 906.

2. A default judgment was entered against Holloway on November 9, 1971. Immediately on being apprised of its existence, he procured counsel who filed a motion attempting to have it vacated. The court hearing this issue held that the default judgment was valid because (a) the motion was not based on a 'nonamendable defect appearing on the face of the record' and (b) the defendant had actual notice (through the unofficial delivery of copy papers to him in Cobb County by an employee of the plaintiff's attorney) that a suit had been filed, and his failure to take action thereon prior to judgment amounted to a waiver of his rights.

Dealing with these legal conclusions in reverse order, we find the second one unacceptable because it requires a party to litigation to make a defense although he has not been served in the case. If this were the law, of course, there would be no such thing as service of process, but all that would be necessary to obtain judgment and levy on a man's property and possessions would be to inform him by whatsoever means that there was in fact a suit pending against him, and throw the burden on him of checking out the rumor, a situation that would indeed lead to the nightmare situations envisioned by Kafka in The Trial.

The other objection stated by the trial judge for not vacating the judgment is that the defect does not appear on the face of the record. The return of service is in fact defective in that it does not show the place of service and does not state that the service was 'at the defendant's dwelling-house or usual place of abode' as required by Code Ann. § 81A-104(d, 7). If we are correct in holding there was no jurisdiction over the person of this defendant in the absence of service of process at a place where the defendant had lived, or by a person authorized to serve him, then it follows that the judgment is void and for this reason the restrictions on the use of motions to set aside set out in Code Ann. § 81A-160(d) on motions to set aside and applied in Aiken v. Bynum, 128 Ga.App. 212, 196 S.E.2d 180, cannot apply here. If lack of jurisdiction of the person could not be raised after judgment even though it rendered the judgment void, and even though a defendant was without knowledge of the filing, courts...

To continue reading

Request your trial
38 cases
  • Herringdine v. Nalley Equipment Leasing
    • United States
    • Georgia Court of Appeals
    • May 11, 1999
    ...under OCGA § 9-11-60(d)(2), and as it is the substance and function of the pleadings which are determinative (Holloway v. Frey, 130 Ga.App. 224, 227, 202 S.E.2d 845 [ (1973) ]), we must treat [defendant's] complaint as a motion to set aside the judgment in which relief was Manley v. Jones, ......
  • Homeland Grp., LLC v. Lawson (In re Credolawson)
    • United States
    • U.S. Bankruptcy Court — Northern District of Georgia
    • February 26, 2016
    ...("there is no magic in mere nomenclature"). Instead, courts look to the substance and function of the pleading. See Holloway v. Frey, 130 Ga.App. 224, 202 S.E.2d 845 (1973) ; Underwood v. D.C. Heath & Co., 64 Ga.App. 180, 12 S.E.2d 464 (1940) ("[t]he character and classification of a motion......
  • Allrid v. Emory University
    • United States
    • Georgia Court of Appeals
    • March 17, 1983
    ...nomenclature, and in classifying pleadings we will construe them to serve the best interests of the pleader...." Holloway v. Frey, 130 Ga.App. 224, 227, 202 S.E.2d 845 (1973). An action for wrongful death may be premised upon "any negligence which was actionable at common law." Caskey v. Un......
  • Fabe v. Floyd
    • United States
    • Georgia Court of Appeals
    • March 12, 1991
    ...motion was only to reconsider earlier rulings, nor his failure to cite OCGA § 9-11-60(d), is of any consequence. See Holloway v. Frey, 130 Ga.App. 224, 227, 202 S.E.2d 845. The motion denied was to set aside the judgment under OCGA § 9-11-60(d), and the discretionary appeals procedure is ap......
  • Request a trial to view additional results
6 books & journal articles
  • 1 Small Claim Cases
    • United States
    • State Bar of Georgia Georgia Benchbook 2018 edition
    • Invalid date
    ...[140 Ga.App. 191, 230 SE2d 315 (1976); 157 Ga.App. 824, 278 SE2d 693 (1981)]. But one may ignore lawsuit where improper service [130 Ga.App. 224, 202 SE2d 845 (1973)]. 1.2 PARTIES 1.21 Capacity to Sue or Be Sued A. Individuals: 1. Capacity of an individual to sue and be sued is governed by ......
  • 1 Small Claim Cases
    • United States
    • State Bar of Georgia Georgia Benchbook 2022 edition
    • Invalid date
    ...[140 Ga.App. 191, 230 SE2d 315 (1976); 157 Ga.App. 824, 278 SE2d 693 (1981)]. But one may ignore lawsuit where improper service [130 Ga.App. 224, 202 SE2d 845 (1973)]. 1.2 PARTIES 1.21 Capacity to Sue or Be Sued A. Individuals: 1. Capacity of an individual to sue and be sued is governed by ......
  • 1 Small Claim Cases
    • United States
    • State Bar of Georgia Georgia Benchbook 2023 edition
    • Invalid date
    ...[140 Ga.App. 191, 230 SE2d 315 (1976); 157 Ga.App. 824, 278 SE2d 693 (1981)]. But one may ignore lawsuit where improper service [130 Ga.App. 224, 202 SE2d 845 (1973)]. 1.2 PARTIES 1.21 Capacity to Sue or Be Sued A. Individuals: 1. Capacity of an individual to sue and be sued is governed by ......
  • 1 Small Claim Cases
    • United States
    • State Bar of Georgia Georgia Benchbook 2017 edition
    • Invalid date
    ...[140 Ga.App. 191, 230 SE2d 315 (1976); 157 Ga.App. 824, 278 SE2d 693 (1981)]. But one may ignore lawsuit where improper service [130 Ga.App. 224, 202 SE2d 845 (1973)]. 1.2 PARTIES 1.21 Capacity to Sue or Be Sued A. Individuals: 1. Capacity of an individual to sue and be sued is governed by ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT