Ryder Auto. Leasing Co. v. Tates, 41338
| Decision Date | 22 June 1965 |
| Docket Number | No. 3,No. 41338,41338,3 |
| Citation | 143 S.E.2d 411,112 Ga.App. 18 |
| Parties | RYDER AUTOMOBILE LEASING COMPANY v. Martha M. TATES et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court
In an action brought by a resident of Georgia against a resident of Georgia and a Florida corporation jointly, the nonresident defendant can challenge the fact of service on the resident defendant by a traverse to the sheriff's return of service alleging that the resident defendant has not in fact been served with process and upon showing this fact, the nonresident defendant will have the right to remove the case to Federal court because of diversity of citizenship between it and the plaintiff.
In this negligence action the plaintiff sued an automobile leasing company (hereinafter called Ryder), the lessee of an automobile, and the driver of the leased automobile (hereinafter called Duncan), allegedly an employee of the lessee. The return of service dated June 17, 1963, stated that the defendant Duncan had been served by leaving a copy of the writ and process at his most notorious place of abode in the county. Ryder filed a traverse to the entry of service on Duncan, alleging that Duncan did not reside at the place stated in the return at the time of the purported service and had never been served, had no notice of the suit, and had not appeared therein. The traverse alleged that, since only Ryder had been served with process (the sheriff's return showed that service had not been perfected on the lessee), it would, upon showing that Duncan had not been served, have the right to remove the case to Federal court because of diversity of citizenship between it and the plaintiff.
The plaintiff filed a motion to strike the traverse on the ground that it was brought not by the defendant Duncan but by a codefendant. The trial court sustained this ground of the motion to strike and dismissed the traverse. The defendant Ryder assigns error on this judgment.
Nall, Miller, Cadenhead & Dennis, Thomas A. Rice, Atlanta, for plaintiff in error.
George G. Finch, John H. Crutchfield, Atlanta, for defendant in error.
A civil action of which the United States district courts have original jurisdiction because of diversity of citizenship of the parties 'shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.' 62 Stat. 937, 28 U.S.C.A. § 1441(b).
The right of a nonresident defendant under this statute to remove when there is a resident co-defendant who has not been served has not been directly decided. If the plaintiff voluntarily dismisses, discontinues, or in any way abandons the action as to a resident sued jointly with a nonresident, the cause then may be removed by the nonresident defendant. Stamm v. American Tel. & Tel. Co., 129 F.Supp. 719, 721 (W.D.Mo.1955); Lewis v. Producers Coop. Oil Mill, 205 F.Supp. 293, 295 (W.D.Mo.1962); Beglane v. Switzer, 209 F.Supp. 849 (W.D.Mo.1962); Cuyler v. Smith, 78 Ga. 662, 3 S.E. 563; Rich's, Inc. v. Andrews, 66 Ga.App. 187, 189, 17 S.E.2d 588, 85 A.L.R. 799. In the Stamm case, supra, the direct court decided that the plaintiff had not abandoned the action against a resident defendant who had not been served with process at the time the action was removed to Federal court, but stated in the opinion that, if the plaintiff proceeded to trial without the resident defendant, that action would constitute a voluntary discontinuance of the action against the resident defendant 'which would then undoubtedly render the case removable.' The reasoning of the Stamm case is that the nonresident defendant has a right to remove the action to Federal court when the record at the time the petition for removal is filed shows that the resident defendant has not been served and the plaintiff is willing to proceed to trial against the nonresident alone. But the nonresident defendant's petition for removal will be fatally defective unless it shows that the resident defendant has not been served. Gratz v. Murchison, 130 F.Supp. 709 (D.Del.1955).
In the present case the record shows, by the sheriff's return of service, that the resident defendant has been served. The sheriff's entry of service is conclusive of the fact of service unless traversed. Benton v. Maddox, 56 Ga.App. 132, 192 S.E. 316.
'As a general rule, the question of defective service may be raised only by the one...
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...672 (2004) (explaining that only the “person harmed by the lack of notice to him” may raise the issue); Ryder Automobile Leasing Co. v. Tates, 112 Ga.App. 18, 20, 143 S.E.2d 411 (1965) (“ ‘As a general rule, the question of defective notice may be raised only by the one on whom attempted se......
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