Long v. Bruner
| Decision Date | 30 May 1984 |
| Docket Number | No. 67914,67914 |
| Citation | 318 S.E.2d 818,171 Ga.App. 124 |
| Parties | LONG v. BRUNER. |
| Court | Georgia Court of Appeals |
Wallace C. Clayton, Melodie H. Clayton, Austell, for appellant.
Michael T. Bennett, Henry D. Green, Jr., Atlanta, for appellee.
This appeal arises from a tort action brought by appellant against appellee and Marvin M. Black Company ("Black") as joint tortfeasors. The suit was filed in the State Court of Cobb County because Black maintained an office located in Cobb County. Appellee, an employee of Black, resided in Gwinnett County. Based upon their assertion that appellant's claim was barred by the Workers' Compensation Act, appellee and Black moved for summary judgment and the trial court granted summary judgment to both. Appellant then appealed to this court and we affirmed. Long v. Marvin M. Black Co., 163 Ga.App. 633, 294 S.E.2d 641 (1982). However, in Long v. Marvin M. Black Co., 250 Ga. 621, 300 S.E.2d 150 (1983), the Supreme Court affirmed the grant of summary judgment only as to Black, reversing as to appellee. Subsequent to this court's adoption of the opinion of the Supreme Court, appellee filed a motion to dismiss asserting improper venue. The motion to dismiss claimed improper venue based upon the fact that Black, the sole resident defendant, had been discharged from liability with the grant of summary judgment in Black's favor. The trial court granted appellee's motion to dismiss.
1. "It has long been the law of this state that where suit is brought against two defendants as joint tortfeasors one of whom resides in the county, the court has no jurisdiction of the non-resident defendant unless the resident co-defendant is liable in the action." Russell v. Hall, 165 Ga.App. 547, 548, 301 S.E.2d 904 (1983). See Evans v. Montgomery Elevator Co., 159 Ga.App. 834, 285 S.E.2d 263 (1981); O'Neill v. Western Mtg. Corp. of Ga., 153 Ga.App. 151, 264 S.E.2d 691 (1980); Timberlake Grocery Co. v. Cartwright, 146 Ga.App. 746, 247 S.E.2d 567 (1978). "In such a case where the resident co-defendant is found not liable ..., the court's jurisdiction over the non-resident defendant vanishes." Thornhill v. Bullock, 118 Ga.App. 186, 187, 162 S.E.2d 886 (1968).
Notwithstanding appellant's arguments to the contrary, appellee's actions in defending the tort claim against him in the trial and appellate courts do not constitute waiver of his defense of lack of personal jurisdiction based upon improper venue. See Steding Pile Driving Corp. v. John H Cunningham & Assoc., 137 Ga.App. 165(1,2), 223 S.E.2d 217 (1976). See also Ga. Kraft Co. v. Laborers' Int. Union of North America, 170 Ga.App. 581(5), 317 S.E.2d 602 (1984). In fact, such defense did not become valid in this case until the appeals process terminated following the Supreme Court's affirmance of the grant of summary judgment to Black. It was at this point that the sole resident defendant was finally discharged from liability in this action, thus removing the trial court's jurisdiction over appellee, the non-resident defendant.
2. The trial court's order granting appellee's motion to dismiss was entered on August 22, 1983. After the entry of that order, on February 15, 1984 the Supreme Court adopted Uniform Transfer Rules which, from the effective date, April 1, 1984, govern the issue raised in this appeal. The Uniform Transfer Rules are found at 251 Ga. 893, 313 S.E.2d (Ga.Cases) LXXII (1984) and were "adopted pursuant to the authority of Art. VI, Sec. IX, Par. I of the 1983 Constitution of the State of Georgia to implement Art. VI, Sec. I, Par. VIII of the 1983 Constitution which provides that: 'Any court shall transfer to the appropriate court in this state any civil case in which it determines that jurisdiction or venue lies elsewhere.' " Id. Rule T-4 provides in pertinent part:
Although the trial court entered its judgment prior...
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Brown v. Coastal Emergency Services, Inc., 73501
...with jurisdiction over the remaining defendants, pursuant to Rule 19.1 of the Uniform Superior Court Rules. Accord Long v. Bruner, 171 Ga.App. 124, 318 S.E.2d 818 (1984). Judgment affirmed in part and reversed in BIRDSONG, C.J., and SOGNIER, J., concur. ...
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Guernsey Petroleum Corp. v. Data General Corp.
...vested right under the prior law." City of Valdosta v. Singleton, 197 Ga. 194, 208, 28 S.E.2d 759 (1944). Accord Long v. Bruner, 171 Ga.App. 124, 126(2), 318 S.E.2d 818 (1984); Osteen v. Osteen, 244 Ga. 445, 260 S.E.2d 321 (1979). Therefore, in testing whether Data General asserted a valid ......
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T.A.W., In Interest of
...It also provided for transfer in Uniform Superior Court Rule 19, effective July 1, 1985. 253 Ga. 829 (1985). 1 In Long v. Bruner, 171 Ga.App. 124, 125(2), 318 S.E.2d 818 (1984), this court did not regard the constitutional transfer provision as self-executing but instead applied the Uniform......
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