Steding Pile Driving Corp. v. John H. Cunningham and Associates

• Decision Date: 05 January 1976
• Docket Number: 51373,Nos. 51277,No. 2,s. 51277,2
• Citation: Steding Pile Driving Corp. v. John H. Cunningham and Associates, 223 S.E.2d 217, 137 Ga.App. 165 (Ga. App. 1976)
• Court: Georgia Court of Appeals
• Parties: STEDING PILE DRIVING CORPORATION v. JOHN H. CUNNINGHAM & ASSOCIATES et al. JOHN H. CUNNINGHAM & ASSOCIATES et al. v. STEDING PILE DRIVING CORPORATION

Page 217

223 S.E.2d 217

137 Ga.App. 165

STEDING PILE DRIVING CORPORATION v.JOHN H. CUNNINGHAM & ASSOCIATES et al.

JOHN H. CUNNINGHAM & ASSOCIATES et al. v.STEDING PILE DRIVING CORPORATION.

Nos. 51277, 51373.

Court of Appeals of Georgia, Division No. 2.

Jan. 5, 1976.

PANNELL, Presiding Judge.

Plaintiff brought suit to recover $32,095 for extra work performed on a construction project.He alleged that the extra work was authorized and demanded by the defendants, who were jointly and severally liable to him for the value of said work.The action was brought in Dougherty Superior Court.Defendant Curry was a resident of Dougherty County; defendant Cunningham was a resident of Fulton County.

Upon the trial of the case, the jury returned a verdict in favor of the defendant Curry but against the defendant Cunningham in the amount of $29,077.Defendant Cunningham made a motion to set aside the verdict, and the court granted same.The plaintiff appeals the order setting aside the verdict of the jury as to defendant Cunningham.Cunningham cross appealed, claiming error in the trial court's failure to grant his motion for directed verdict.Held:

1.The trial court set aside the verdict as to defendant Cunningham on the ground that the court had lost its jurisdiction and venue over said defendant.The order of the trial court provides as follows: 'The jury having found in favor of the resident defendant and thus discharging S. J. Curry & Company, Inc., this Court no longer retained jurisdiction over the nonresident defendant as it had lost the venue.Wherefore, the verdict of the jury in this case insofar as it finds against John H. Cunningham & Associates, Architects, is set aside as this Court no longer retains jurisdiction and venue over the defendantJohn H. Cunningham & Associates, Architects.Therefore, this case is hereby dismissed as to John H. Cunningham & Associates, Architects for want of jurisdiction and venue.'

Where joint tortfeasors or joint obligors residing in different counties are sued in the county of one, and on the trial of the case the resident defendant is discharged and a verdict returned solely against the non-resident defendant, the court is without jurisdiction to enter a judgment against the non-resident defendant.Southeastern Truck Lines, Inc. v. Rann, 214 Ga. 813, 108 S.E.2d 561;Hamilton v. Du Pre, 111 Ga. 819, 35 S.E. 684;Morris v. Bell, 100 Ga.App. 341, 342, 111 S.E.2d 270.'In such a case where the resident co-defendant is found not liable by the jury, the court's jurisdiction over the non-resident defendant vanishes.'Thornhill v. Bullock, 118 Ga.App. 186, 187, 162 S.E.2d 886, 888.

2.However, personal jurisdiction may be waived by the defendant, either expressly or impliedly, by his conduct.SeeBurger v. Noble, 81 Ga.App. 759, 59 S.E.2d 761.Appellant contends that the appellee waived personal jurisdiction and venue by pleading to the merits of the case and by filing a motion for summary judgment.SeeBiddinger v. Fletcher, 224 Ga. 501, 162 S.E.2d 414;Black v. Milner Hotels, Inc., 194 Ga. 828, 831, 22 S.E.2d 780.'Code§ 81-503 provides as follows: 'If a defendant shall appeal and plead to the merits, without pleading to the jurisdiction, and without excepting thereto, he shall thereby admit the jurisdiction of the court.'Obviously, this Code section cannot apply to a defendant such as the one here in the first instance, for he must appear and plead to the merits and stand before the court until the codefendant is discharged.The appearance of the defendant and his plea to the merits in the first instance, therefore, did not constitute a waiver under this Code section.'Burger v. Noble, 81 Ga.App. 759, 761, 59 S.E.2d 761, 762.

3.Appellant further argues that appellee impliedly waived personal jurisdiction by failing to object to the charge of the trial judge.The court charged the jury that they could find against one or both of the defendants.Appellant cites the following cases in support of the argument that appellee's failure to object to the court's charge amounted to a waiver of jurisdiction: Southern Nitrogen Company, Inc. v. Manuel, 110 Ga.App. 597, 139 S.E.2d 453;Davis v. Waycross Coca-Cola Bottling Co., 60 Ga.App. 390, 3 S.E.2d 863.These two cases are clearly distinguishable from the present case.

In Davis, the non-resident defendant made a statement in open court that a verdict would be authorized against himself irrespective of whether a verdict was found against the resident defendant.The court then...