Hutcheson Mfg. Co. v. Chandler
| Decision Date | 22 February 1923 |
| Docket Number | 13440. |
| Citation | 116 S.E. 849,29 Ga.App. 726 |
| Parties | HUTCHESON MFG. CO. v. CHANDLER. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
The service upon the defendant was sufficient as against the objections interposed.
The record does not sufficiently raise for decision the question of whether, upon the death of the plaintiff, who was suing under the provisions of section 4424 of the Civil Code of 1910 for the death of her son, her temporary administrator then made a party, would not, in abstract law, be authorized to proceed with the action as the plaintiff in her stead.
There was no substantial merit in any of the special assignments of error. There was some evidence to authorize the verdict in favor of the plaintiff, which the trial judge has approved and there was no error in overruling the defendant's motion for a new trial.
Additional Syllabus by Editorial Staff.
The domicile of a corporation does not depend on the place of residence of its officers, but on the terms of its charter.
Under Civ. Code 1910, § 5567, the clerk, without order of court could not issue process, directed to officers of another county, in action against corporation whose charter designated the county of suit as its place of business.
A sheriff's authority to make service held limited to the bounds of his county.
Where evidence demanded finding against traverse to return of service, it was harmless error, if error at all, to consolidate the issue with another of the same kind over defendant's objection.
Where administratrix was made party on plaintiff's death, without any showing as to whether she was temporary or permanent administratrix, proof of her representative character was unnecessary, unless plea of ne unques administrator was filed.
Where temporary administratrix had been made party without objection on plaintiff's death, and defendant did not then or thereafter by plea contest her right to proceed, it was not error to charge that the case might proceed with the administratrix in place of the original plaintiff.
Error from City Court of Carrollton; Leon Hood, Judge.
Action by Maggie Chandler, administratrix, against the Hutcheson Manufacturing Company. Judgment for plaintiff, and defendant brings error. Affirmed.
Boykin & Boykin, of Carrollton, and Griffith & Matthews, of Buchanan, for plaintiff in error.
J. Caleb Clarke, of Atlanta, and S. Holderness, of Carrollton, for defendant in error.
1. This was an action originally filed by Mrs. Josie Berger, for damages on account of the death of her son, alleged to have been caused by the negligence of the defendant. Subsequently she died, and an administrator was appointed and made a party plaintiff in her stead. The suit was filed in the city court of Carrollton, and alleged that the injury and death occurred in Carroll county.
The defendant is a private corporation existing under a charter fixing its place of business in the same county. However, at some time subsequent to the occurrence out of which the suit arises, the defendant had ceased business operations in the county, and has no agent, officer, agency, or place of business therein, aside from the provisions of its charter as to the location in that county of its principal place of business. Its chief officers reside in Haralson county; its treasurer resides in De Kalb county. These appear to have been the facts at the time the suit was filed and at all other times thereafter during its progress.
The suit was returnable to the March term, 1921. The first attempt at service appears to have been admittedly a failure. On May 21, 1921, the plaintiff procured an order from the presiding judge, of which the following is a copy:
The second original was accordingly issued, with process directed to the sheriff, or his deputies, of Haralson county. On May 24, 1921, a return of same was made, as follows:
This entry was attacked by a traverse. It was contended therein that this service did not amount to service upon the company as therein declared; that the process had not been served upon any officer or agent upon whom service might be made, so as to bind the defendant. Various grounds of attack are made upon the sufficiency of this service, but this general statement will suffice for the purpose in hand. It will be noticed that the order recited that the service should be made upon the president, while it actually was made upon the vice president. The plaintiff moved to amend the order by inserting--after the word "president"--"or some other officer of said corporation." The defendant objected to the allowance of this amendment, upon the ground that the original order provided for service upon the president, and that the service upon the vice president was therefore invalid, and could not now be made good by any amendment of the original order. The court overruled the motion and allowed the amendment. No subsequent service was made.
Upon the trial of the traverse it indisputably appeared, as above stated, that there was no representative or agency of the company in Carroll county upon whom or at which service might be made. The court directed a verdict against the traverse. There were objections to the mode of the trial of the issue upon the traverse. There was, too, a plea to the jurisdiction, but these need not be referred to in detail, inasmuch as they will be controlled by our decision upon the questions which we have specifically stated. There was no waiver of service by the answer, but, on the contrary, the contentions as made by the traverse and the above-mentioned plea were properly preserved. Bell v. New Orleans, etc., R. Co., 2 Ga.App. 812 (5), 59 S.E. 102; McFarland v. McFarland, 151 Ga. 9 (3), 105 S.E. 596.
Since the charter of the defendant fixes its principal place of business in Carroll county, this is the county of its residence, and it cannot be sued anywhere else unless so provided by statute. Central Ry. Co. v. State, 104 Ga. 835, 31 S.E. 531, 42 L.R.A. 518; Sprinkle Co. v. Southern Express Co., 141 Ga. 23, 80 S.E. 288; Civil Code 1910, § 6543. And it is nowhere so otherwise provided, unless by the terms of section 2259 of the Code. But this section adds nothing for venue in the present case, for the reason that the injury also occurred in the county of Carroll.
The domicile of a corporation does not depend upon the place of the residence of its officers, but upon the terms of its charter. In addition to the authorities above cited, see McCandless v. Inland Acid Co., 115 Ga. 977 (3), 42 S.E. 449; Jossey v. Georgia & Alabama Railway Co., 102 Ga. 706, 28 S.E. 273. In the last-mentioned case it is shown that the location of the principal office by the charter cannot be changed by the mere action of the corporate authorities. There is no place where this suit could have been brought except in the county of Carroll. How was the defendant to be served? Section 2259 of the Code, already adverted to, provides as follows:
But service under this section was impossible, because the defendant had no agent in the county, and no physical place of business at which a copy of the writ might be left. Central Georgia Power Co. v. Parnell, 11 Ga.App. 779 (1), 76 S.E. 157; Tuggle v. Enterprise Lumber Co., 123 Ga. 480, 51 S.E. 433.
Clearly this was no case for service by publication under section 2261 of the Civil Code, for there were officers in the state upon whom the service might be personally perfected. Section 2258 of the Code provides upon whom the service shall be made. This section is as follows:
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