Holloway v. Frey, 48652

• Decision Date: 18 October 1973
• Docket Number: No. 1,No. 48652,48652,1
• Citation: 202 S.E.2d 845,130 Ga.App. 224
• Parties: J. B. HOLLOWAY v. R. H. FREY
• Court: Georgia Court of Appeals

Page 845

202 S.E.2d 845

130 Ga.App. 224

J. B. HOLLOWAY v. R. H. FREY.

No. 48652.

Court of Appeals of Georgia, Division No. 1.

Oct. 18, 1973.

Rehearing Denied Nov. 13, 1973.

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, cou...