Rhodes v. Southern Flour & Grain Co.
| Decision Date | 20 February 1932 |
| Docket Number | 21666. |
| Citation | 163 S.E. 237,45 Ga.App. 13 |
| Parties | RHODES v. SOUTHERN FLOUR & GRAIN CO. |
| Court | Georgia Court of Appeals |
Syllabus by Editorial Staff.
Nonresident defendant, brought within court's jurisdiction by valid service, cannot attack judgment by affidavit of illegality (Civ. Code 1910, § 5311).
Where service is insufficient to give jurisdiction, defendant is not precluded from attacking judgment by affidavit of illegality (Civ. Code 1910, § 5311).
Judgment against nonresident defendants by default held subject to attack by affidavit of illegality, notwithstanding service, where resident defendant filed plea denying liability and jury found in his favor (Civ. Code 1910, § 5311).
Traverse of service entry held not necessary to aid affidavit of illegality attacking default judgment against nonresident defendants, where verdict was returned for resident defendant (Civ. Code 1910, § 5311).
Error from City Court of Hall County; W. B. Sloan, Judge.
Execution proceedings by the Southern Flour & Grain Company against Ed Rhodes. Judgment was entered overruling an affidavit of illegality, and defendant in execution brings error.
Reversed.
J. P Brooke, of Alpharetta, for plaintiff in error.
W. N Oliver, of Gainesville, and J. D. Stewart, of Atlanta, for defendant in error.
Syllabus OPINION.
1. If the defendant has had his day in court, he cannot go behind the judgment by an affidavit of illegality. This rule, however, presupposes an apparently valid service upon a suit which indicates that with service the court has jurisdiction of the defendant's person. In such a case the defendant cannot attack the judgment by affidavit of illegality, even though because of his residence in another county he should not have been sued in the county where the action was brought. Civ. Code 1910, § 5311; Sanford v. Bates, 99 Ga. 145 (2), 25 S.E. 35; McKnight v. Wilson, 158 Ga. 153 (3), 122 S.E. 702; Owen v. Federal Land Bank, 37 Ga.App. 394, 140 S.E. 425; Mason v. Stevens Warehouse Co., 43 Ga.App. 375 (3), 158 S.E. 631.
2. But the rule stated has no application where it appears from the record that even with actual service the court would have no jurisdiction of the defendant. In the latter case the service goes for nought, and upon such service alone it cannot be said that the defendant has had his day in court. Maund v. Keating, 55 Ga. 396; Bolton v. Keys, 38 Ga.App. 573 (1), 144 S.E. 406, and cases cited.
3. Where a suit was brought against three separate defendants, alleging their residence in three separate counties, and second originals were served upon the two nonresident defendants, and where the resident defendant filed a plea, not upon a subsequent discharge as in McKibben v. Fourth National Bank, 32 Ga.App. 222 (6), 122 S.E. 891, but denying that he was ever liable to the plaintiff in any sum, upon which plea the jury found a verdict in his favor, the court could not proceed to judgment against the two nonresident defendants merely because they had been served with second originals and had failed to file a defense. In such a case it is apparent from the face of the record that the court is without jurisdiction to render judgment against the nonresident defendants, and a judgment so rendered, though by default, is absolutely void and may be attacked by affidavit of illegality. Warren v. Rushing, 144 Ga. 612 (1), 87 S.E. 775; Jackson v. Hitchcock, 48 Ga. 491 (2); Keaton v. Moore, 59 Ga. 554; Planters' Bank v. Berry, 91 Ga. 264, 18 S.E. 137; Harrell v. Davis Wagon Co., 140 Ga. 127, 78 S.E. 713; Williamson v. Williamson, 154 Ga. 788, 115 S.E. 805; Grand Lodge v. Massey, 35 Ga.App. 140 (5), 132 S.E. 270; Christian v. Terry, 36 Ga.App. 815 (1), 138 S.E. 244; Davis v. Vickers, 41 Ga.App. 818 (7), 155 S.E. 92; Ivey v. Kerce, 42 Ga.App. 336 (1), 156 S.E. 239.
4. Although the jurisdiction of the nonresident defendants sufficiently appeared at...
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