R. O. A. Motors, Inc. v. Taylor, 22472

• Decision Date: 10 June 1964
• Docket Number: No. 22472,22472
• Parties: R. O. A. MOTORS, INC. v. James H. TAYLOR, Jr.
• Court: Georgia Supreme Court

Page 459

137 S.E.2d 459

220 Ga. 122

R. O. A. MOTORS, INC. v. James H. TAYLOR, Jr.

No. 22472.

Supreme Court of Georgia.

June 10, 1964.

Rehearing Denied July 6, 1964.

Syllabus by the Court

1. The decision of the Court of Appeals (108 Ga.App. 635, 134 S.E.2d 486) on the appearance of this case there became the law of the case and the same questions cannot be raised again in a subsequent appeal.

2. A party will not be permitted to avoid a judgment of the Court of Appeals when the case is returned to the trial court by filing a special plea attacking the constitutionality of a Code section, the status of the law complained of, in regard to its constitutionality, not having changed since the filing of the suit.

Woodruff, Savell, Lane & Williams, B.F. Woodruff, Edward L. Savell, Atlanta, for plaintiff in error.

E. C. Harvey, Jr., Warner S. Currie, Atlanta, for defendant in error.

ALMAND, Justice.

This case involves the constitutionality of Code § 22-1211 as applied to a foreign corporation. Code Ann. § 22-1874 (Ga.L.1937-38 Ex.Sess., pp. 214, 242) provides: 'All corporations, whether they expire by their own limitations or are otherwise dissolved, shall nevertheless be continued for the term of three years and until final disposition of all suits begun within that time from such expiration or dissolution bodies corporate for the purpose of prosecuting and defending suits by or against them and enabling them gradually to settle and close their business, to dispose of and convey their property and to divide their assets, but not for the purpose of continuing the business for which the said corporation shall have been established.' Code § 22-1211 provides: 'Suits for the enforcement of any demand or cause of action due by such corporation may to a like extent be instituted and enforced against it in any court having jurisdiction thereof at the time of its dissolution, and service thereon may be perfected either by seizure of the property of such corporation, by any form of legal process, or by serving with process issued upon said suits any person who, as an agent or officer of such corporation, was subject to be served as its officer or agent at the time of such dissolution.' In September 1962 the defendant in error, James H. Taylor, Jr., filed a petition in the Civil Court of Fulton County against the plaintiff in error, R. O. A. Motors, Inc., incorporated under the laws of Delaware, seeking to recover for damages to certain premises leased by him to the plaintiff in error and for the balance of rent which was allegedly due. By agreement of the parties the case was tried on the following stipulation of facts: The defendant, who was never domesticated in Georgia, did business in the state from January 10, 1961 to December 15, 1961, and has not done business in the State since December 15, 1961. Before doing business in Georgia the defendant paid the registration fee and filed a copy of its charter and a return with the Secretary of State as required by Georgia law. On October 3, 1961, the defendant filed a similar return and paid fees. In both returns W. Charles LeShanna was designated as the defendant's authorized agent in Georgia. On October 30, 1961, a fire occurred on the premises leased to defendant by the plaintiff and the defendant vacated the premises. By application dated December 21, 1961 the defendant ceased to do business in the State and on December 27, 1961, its name was removed from the corporate records in the office of the Secretary of State and the agency of W. Charles LeShanna was terminated. Two days later on December 29, 1961 the defendant was dissolved as a corporation under the laws of Delaware. This suit was filed on September 24, 1962, and service was made the following day on W. Charles LeShanna at the Healey Building, Atlanta, Ga. and on the Secretary of State. The copy of the petition mailed to the defendant by the Secretary of State was returned 'addressee unknown.'

On November 5, 1962, the defendant made a special appearance, filing a plea in abatement denying service and traversing entry of service and filing a plea of the jurisdiction. In both pleas it was asserted that the court did not have jurisdiction over the defendant and that the defendant was not doing business in Georgia at the time the suit was filed. The trial court sustained the plea in abatement and vacated and set aside the entries of service but did not rule on the plea to the jurisdiction. Error was assigned on this order and the case was carried by writ of error to the Court of Appeals where it was held that Code § 22-1211 applies to foreign corporations and that the defendant 'was properly served by service of process issued upon said suit upon the person who was an agent of such corporation and subject to be served as its agent at the time of such dissolution. Code § 22-1211.' Taylor v. R. O. A. Motors, 108 Ga.App. 635, 637, 134 S.E.2d 486, 488. A motion for rehearing was denied and defendant's application for certiorari was denied by this Court. Thereafter the case was remanded to the trial court and the defendant renewed his plea to the jurisdiction and filed a motion to dismiss. In the plea to the jurisdiction it was asserted that the assumption of jurisdiction over the defendant would violate the due process clauses of the Georgia and United States Constitutions and the equal protection clause of the United States Constitution because at the time of service of process the defendant was not a resident of Georgia, was not doing business within the State and had no office, agent or statutory agent within the State. In its motion to dismiss it charged that Code § 22-1211 was unconstitutional as being violative of the due process clauses of both Constitutions and of the equal protection clause of the Fourteenth Amendment to the FederalConstitution. After a hearing the trial court entered an order overruling the plea to the jurisdiction and the motion to dismiss. Error is assigned on this order.

1. On this appeal counsel for the plaintiff in error argue two points. First they contend that the statutes of Georgia do not give the state jurisdiction over the plaintiff in error because Code § 22-1211 does not apply to foreign corporations and because there is not a valid statute in Georgia which continues the existence of a foreign corporation after its dissolution. These contentions cannot be considered here. The Court of Appeals, as will be seen from its opinion, necessarily...