Sheet Metal Workers Intern. Ass'n v. Carter
| Decision Date | 02 November 1977 |
| Docket Number | No. 1,No. 54251,54251,1 |
| Citation | 144 Ga.App. 48,240 S.E.2d 569 |
| Parties | , 98 L.R.R.M. (BNA) 2177 SHEET METAL WORKERS INTERNATIONAL ASSOCIATION v. Ben CARTER |
| Court | Georgia Court of Appeals |
Jacobs, Jacobs & Davis, Joseph Jacobs, James T. Langford, Atlanta, Lanier, Powell, Cooper & Cooper, Jack L. Cooper, Jr., Augusta, Mulholland, Hickey & Lyman, Donald W. Fisher, Toledo, Ohio, for appellant.
Harris, McCracken, Pickett & Jackson, William R. McCracken, Kenneth R. Chance, Augusta, for appellee.
The facts of this case, basically involving Carter's suit against the appellant union for conspiring to deprive him of his means of livelihood, are more fully reported in a previous opinion on an interlocutory appeal. Sheet Metal Workers International Association v. Carter, 133 Ga.App. 872, 212 S.E.2d 645. After jury trial on the issue of damages, verdict and judgment were rendered against the appellant, Sheet Metal Workers International Association. This appeal contends that the action against the appellant was preempted by federal law, that the appellant was not properly served, that default against the appellant on the issue of liability should have been opened, that the case against the appellant should have been dismissed, that failure of the court to enter a pre-trial order was harmful error, that the evidence did not support the damage verdict, and that numerous evidentiary rulings at the damage trial were erroneous, and finally that the charge to the jury was erroneous. Finding no harmful error, we affirm.
The facts as reported in the previous case should be supplemented by noting that the suit against the local union was voluntarily dismissed shortly before trial. This left only the suit against the appellant who had been declared in default. Thus, the trial concerned only the amount of damages to be awarded.
1. The appellant's contentions that this action was preempted by federal law were fully and adversely answered on interlocutory appeal. Sheet Metal Workers International Association v. Carter, 133 Ga.App. 872, 212 S.E.2d 645, cert. denied, 423 U.S. 909, 96 S.Ct. 212, 46 L.Ed.2d 138.
2. Service of process against appellant is governed by Ga.L.1959, pp. 44, 45 (Code Ann. § 3-119), which provides that process may be served " upon any officer, or official member of such organization or association or upon any officer, or official member of any branch or local of such organization or association, provided that any such organization or association may file with the Secretary of State a designated officer or agent upon whom service shall be had and his residence address within the State, and if such designation is so made and filed, service of process shall be had only on the officer or agent so designated if he can be found within the State." Service here was made upon an individual member of the local union who held no office or position of special responsibility within the union. The question is whether this individual is an "official member" within the meaning of this statute, and we hold that he is. It is true that other cases which have dealt with this statute have involved service upon members of the local who occupied a higher position in the union organization than the rank and file member. E. g., Smith v. United Construction Workers, 106 Ga.App. 87, 126 S.E.2d 307; American Federation of State, County & Municipal Employees AFL-CIO v. Rowe, 121 Ga.App. 99, 172 S.E.2d 866. However, they did not require an answer to the question presented here. If the statute were construed to mean that only officers of the union or the local could be served, then the language of the statute would twice contain a useless redundancy; there would be no need to state "officer, or official member." The only meaning this statute can logically have is that service may be had upon an officer, or upon a member who is listed on the official rolls of the union.
The appellant's observation that such a construction would open associations to the possibility of fraudulent service where one member would sue the organization and have service made upon a cooperative, sympathetic member who would then fail to relay the process was apparently anticipated when the legislature provided that such associations could designate an exclusive agent for service of process by filing the agent's name with the Secretary of State. If the statute still leaves open the possibility of abuse, the problem is legislative, and it is not the province of this court, through construction or interpretation, to skirt the plain meaning of this statute.
There was no showing that the appellant had designated an exclusive agent for service of process; hence, it was not error for the trial court to conclude that service upon a member of the local was proper. American Federation of State, County & Municipal Employees, AFL-CIO v. Rowe, supra.
3. The appellant's contention that the trial court erred in refusing its motion to open default is without merit. Whether a default shall be opened is within the discretion of the trial court. Although the court must exercise whatever discretion it has (American Liberty Ins. Co. v. Sanders, 120 Ga.App. 202, 170 S.E.2d 249), where the record shows...
To continue reading
Request your trial
- Dempsey v. Kaminski Jewelry, Inc., No. A05A2142.
- Cohran v. Carlin, 65080
-
Watkins & Watkins, PC v. Williams
...Smith v. Davis, 121 Ga.App. 704, 705-706(2), 175 S.E.2d 28 (1970) (physical precedent only); see Sheet Metal Workers &c. v. Carter, 144 Ga.App. 48, 51(5), 240 S.E.2d 569 (1977), rev'd on other grounds, 241 Ga. 220, 244 S.E.2d 860 (1978); OCGA § 9-11-16(b). Upon a review of the record, we fi......
- Tennesco, Inc. v. Berger
-
Caught Between a Rock and a Hard Place
...(1985). [25] Id. at 249, 327 S.E.2d at 734; accord Jett v. State, 230 Ga. App. 655, 656, 498 S.E.2d 274, 276 (1998) (citing Tennesco, 144 Ga. App. at 48, 240 S.E.2d at 588). [26] Petty v. Chrysler Credit Corp., 169 Ga. App. 418, 418, 312 S.E.2d 874, 875 (1984); accord Chambers v. McDonald, ......
-
Evidence - Marc T. Treadwell
...(1977)). 60. Id. at 814-15, 630 S.E.2d at 79. 61. Id. at 815-16, 630 S.E.2d at 80. 62. Id. at 816, 630 S.E.2d at 80 (citing Tennesco, 144 Ga. App. at 48, 240 S.E.2d at 588). 63. Id. 64. Id. 65. O.C.G.A. Sec. 24-9-64 (1995). 66. 274 Ga. App. 410, 618 S.E.2d 104 (2005). 67. Id. at 410-11, 618......