Tow v. Evans
| Citation | 20 S.E.2d 922,194 Ga. 160 |
| Decision Date | 18 June 1942 |
| Docket Number | 14088. |
| Parties | TOW v. EVANS. |
| Court | Supreme Court of Georgia |
James A. Branch, Thomas B. Branch, Jr., and James A Branch, Jr., all of Atlanta, for plaintiff in error.
Philip F. Etheridge and Woodruff & Ward, all of Atlanta, for defendant in error.
R S. Evans instituted an equitable action in the superior court of Fulton County, Georgia, against Martin Tow, alleged to be a non-resident of the State of Georgia, residing in Argentina, South America, whose residence was unknown to petitioner. The petition declared upon an alleged debt of $25,000 owed by defendant to the petitioner, and alleged that the defendant with others has a 'safety-deposit box' in Fulton National Bank of Atlanta, Georgia, which contains certain shares of common stock issued to the defendant by the American Bantam Car Company, Inc., a corporation of the State of Pennsylvania. Other allegations are, that the defendant has no other property in the State of Georgia, and that 'unless petitioner is allowed to recover these securities, your petitioner will be unable to recover, * * * by reason of the fact' that defendant is a non-resident and cannot be personally served. The prayers were, for issuance of a rule nisi, appointment of a receiver to take charge of the shares of stock; for judgment in the amount of the debt; that the securities be sold, the proceeds to be credited on the judgment; for injunction to prevent changing the status of the securities; that constructive service be perfected as provided by the statute; and for general relief. At interlocutory hearing the defendant appeared specially for the purpose of objecting to the jurisdiction, and moved to dismiss the suit, on the grounds that defendant, being a non-resident of the State, was not served personally, nor was constructive service perfected upon him as provided by the statute, nor had he waived service. Subject to his motion to dismiss, the defendant filed an answer setting up the same grounds of want of jurisdiction, and denying the indebtedness. After evidence was introduced by both sides, the judge appointed a receiver and granted a temporary injunction. The defendant excepted.
Syllabus Opinion by the Court.
1. A fundamental question is jurisdiction of the court. The petition proceeds on the theory of equitable jurisdiction in rem by seizure of the property in this State of a non-resident debtor, as in Edwards Manufacturing Co. v Hood, 167 Ga. 144(3), 145 S.E. 87, based on constructive service. There was no pretense of personal service or waiver of service; and the question is, was constructive service perfected as provided by the statute?
2. It is declared in the Code, § 81-205, that where any non-resident person shall claim or own personal property in this State, service on such non-resident may be made by publication in cases affecting such property where proceedings are brought (6) to exclude him 'from an interest therein,' or (7) where such non-resident person has 'any property in this State.' In such cases the judge § 81-206. Where the residence or abiding place of the absent or non-resident party is known, 'the party obtaining the order shall file in the office of the clerk, at least 30 days before the term next after the order for publication, a copy of the newspaper in which said notice is published, with said notice plainly marked; and thereupon it shall be the duty of said clerk at once to inclose, direct, stamp, and mail said paper to said party named in said order, and make an entry of his action on the petition or other writ in said case.' Code, § 81-207. 'It shall be the duty of the judge trying the case, before the trial thereof, to determine whether such service has been properly perfected, and to write an order to that effect upon the petition in said case as showing service thereof, which shall also be entered upon the minutes of the court.' § 81-208. Such adjudication, however, is not jurisdictional. Millis v. Millis, 165 Ga. 233, 140 S.E. 503. The provisions of § 81-207, supra, do not apply where the residence or abiding place of the absent party is not known. Faughnan v. Bashlor, 163 Ga. 525(2), 136 S.E. 545. The admissions in the pleadings and the evidence authorized a finding that the plaintiff did not know the residence or abiding place of the defendant, and that constructive service had been perfected.
3. Corporate stock represents interest in the corporation, and...
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