Roland v. Shelton, s. 39647

• Decision Date: 21 September 1962
• Docket Number: Nos. 39647,39652,39654,No. 3,39648,39650,39651,39655,39653,39649,s. 39647,3
• Citation: 106 Ga.App. 581,127 S.E.2d 497
• Parties: E. E. ROLAND v. Mabb Marable Boswell SHELTON. Jacqueline ROLAND v. Mabb Marable Boswell SHELTON. Lynette ROLAND v. Mabb Marable Boswell SHELTON. D. T. ROLAND v. Mabb Marable Boswell SHELTON. D. T. ROLAND, by Next Friend v. Mabb Marable Boswell SHELTON
• Court: Georgia Court of Appeals

Page 497

127 S.E.2d 497

106 Ga.App. 581

E. E. ROLAND v. Mabb Marable Boswell SHELTON.

Jacqueline ROLAND v. Mabb Marable Boswell SHELTON.

Lynette ROLAND v. Mabb Marable Boswell SHELTON.

D. T. ROLAND v. Mabb Marable Boswell SHELTON.

D. T. ROLAND, by Next Friend v. Mabb Marable Boswell SHELTON.

Nos. 39647, 39648, 39649, 39650, 39651, 39652, 39653, 39654, 39655.

Court of Appeals of Georgia, Division No. 3.

Sept. 21, 1962.

Syllabus by the Court.

1. In an action brought against a nonresident motorist where service is attempted to be had under the provisions of Code Ann. § 68-802, as amended, service on the Secretary of State of Georgia and notice sent to the defendant by registered mail are essential to give a court of this State jurisdiction of the person of the defendant. Jurisdiction thus obtained is dependent upon actual notice to the defendant of the pendency of the suit and not upon mere proof thereof, but in the absence of a showing by the defendant that such notice was not in fact received, proof which raises a reasonable probability that notice was received by the defendant is sufficient.

2. A judgment obtained in default against a nonresident defendant after proof of facts raising a presumption that the defendant received notice is void where the defendant did not in fact receive notice of the pendency of the action before judgment nor waive notice, and where the defendant came into court promptly upon receipt of notice, after judgment, and moved the court to vacate and set aside the judgment, it was proper for the trial court to grant such motion upon proof of the facts.

Carmine Fiorention, Atlanta, for plaintiffs in error.

Smith, Field, Ringel, Martin & Carr, Sam F. Lowe, Jr., Atlanta, for defendant in error.

CARLISLE, Presiding Judge.

In each of these cases the plaintiffs, Roland, filed suit in Fulton Superior Court against Mrs. Shelton, defendant, seeking damages on account of an automobile collision. Mrs. Shelton is a nonresident and service of the petition and process was had on the Secretary of State of Georgia under the provisions of Chapter 68-8 of the Code. As shown by affidavit of counsel for plaintiff, notice of such service was given defendant by placing a copy of the petition and process in an envelope addressed to her at Route 1, Box 144, Jackson, South Carolina, and the same sent by registered mail return receipt requested. The record shows that when each of the petitions and processes was received at the Post Office at Jackson, South Carolina, an attempt was made to deliver them to the addressee but the postman failed to find anyone at home who could accept delivery of the envelopes; that a notice was placed in the addressee's mail box for each of the envelopes, advising the addressee that the envelopes were held at the Post Office for delivery; that the addressee failed to appear to claim the envelopes; that thereafter a second such notice was placed in the mail box and when after a period of five days the addressee still failed to appear and claim the mail, the envelopes were returned to the Secretary of State, marked 'Unclaimed.' After the return of the envelopes plaintiff filed a petition in the Superior Court of Fulton County praying for an order declaring the service of process perfected. On June 15, 1961, at the May term of the Fulton Superior Court, an order was entered in each case adjudging and decreeing that petitioners had complied in every respect with the Georgia Nonresident Motorists Act, and that service of process in each of the cases was perfected as to the defendant, Mrs. Mabel Marable Boswell Shelton. Thereafter at the September term, 1961, of the Fulton Superior Court a jury, after hearing evidence as to the issue of unliquidated damages, rendered verdicts in each of the cases in favor of the plaintiff, and judgments were entered on those verdicts. On December 28, 1961, at the November term, the defendant filed in each case a motion to set aside and vacate the verdict and judgment previously entered in the case and also the order declaring service perfected, attaching thereto supporting affidavits. In these motions defendant alleged that she never received any notice of the pendency of the suits, did not receive any of the Post Office notices respecting the registered mail, and had no actual knowledge that suits had been filed against her until after judgment had been entered in the suits. These motions were verified by the defendant. Rules nisi were issued on these motions and served on the attorney for the plaintiff who filed responses thereto. Upon the hearing of the matter before the trial judge, plaintiff made an oral motion to dismiss defendant's motion to vacate and set aside the verdict and judgment in each case, and the trial judge, after hearing the evidence and argument of counsel, overruled the oral motion and entered an order vacating and setting aside the judgment declaring service perfected upon the defendant, and also the verdict and judgment entered in each case. The assignment of error in each case is on this latter judgment.

The rural mail carrier serving the route on which defendant lived testified by deposition that he placed notices of the registered mail in the defendant's box on two occasions after he attempted to deliver the mail to her and found her not at home each time, and that upon making his rounds on the day thereafter the notices were not in the box. The defendant, Mrs. Shelton, testified by deposition that she did not receive the notices about the registered letters placed in her box and that she had no notice or knowledge of the filing of the suits...