Union Marine Fire Ins. Co v. Mcdermott, (No. 14723.)

• Decision Date: 25 February 1924
• Docket Number: (No. 14723.)
• Citation: Union Marine Fire Ins. Co v. Mcdermott, 121 S.E. 849, 31 Ga.App. 676 (Ga. App. 1924)
• Parties: UNION MARINE FIRE INS. CO. v. McDERMOTT.
• Court: Georgia Court of Appeals

31 Ga.App. 676

121 S.E. 849

UNION MARINE FIRE INS. CO.

v.McDERMOTT.

(No. 14723.)

Court of Appeals of Georgia, Division No. 2.

Feb. 25, 1924.

Rehearing Denied March 1, 1924.

(Syllabus by the Court.)

Stephens, J., dissenting.

Error from Superior Court, Floyd County; Moses Wright, Judge.

Action by Bud McDermott, for the use of one Watkins, against the Union Marine Fire Insurance Company.Judgment for plaintiff, and defendant brings error.Reversed.

McDermott, for the use of Watkins, filed a suit in the superior court of Floyd county against the Union Marine Fire Insurance Company upon a policy of fire Insurance.The policy was issued on October 25, 1920, on which date, it is alleged, the defendant had an office and agent in Floyd county, where the policy was written; but it is further alleged that "before the filing of this petition said office of said defendant has been discontinued, and now said defendant has no agent or place of doing business in said county, " and that the defendant is a nonresident insurance company.The policy contained the following clause:

"No suit or action upon this policy or for the recovery of any claim hereunder shall be sustainable in any court of law or equity * * * unless commenced within 12 months next after the happening of the loss."

It is further alleged that the property covered by the policy was destroyed by fire on February 18, 1921, in Floyd county.The suit was filed on November 17, 1921, returnable to the January term, 1922, and on the same date process was attached and issued by the clerk, directed to the sheriff of Floyd county.On the same date an entry was made upon the petition by a deputy sheriff of Floyd county, reciting that service had been made by leaving a copy "at the place [specifically designated in the entry] where was located the agency or place of doing business of said Union Marine Fire Insurance Company, Limited, on the 25th day of October, 1920, " this being the date on which the policy was written.On February 25, 1922, the defendant made a special appearance for the purpose of attacking this entry, which was done by a motion to which the sheriff and his deputy were made parties.It was alleged in the motion that the return of service was void and of no effect, for the reason that it does not recite or show that the petition and process were served or attempted to be served upon the defendant, and because that part of section 2564 of the Civil Code of Georgia of 1910, under which the service was attempted to be made is void and unconstitutional, as was held by the Supreme Court in Jefferson Fire Insurance Co. v. Brackin, 140 Ga. 637, 79 S. E. 467.It does not appear that any action was ever taken by the court upon this motion, but on March 4, 1922, the plaintiff amended his petition by alleging that "the defendant company, a foreign insurance company has a duly appointed and authorized named person, to wit, C. D. Martin, of Atlanta, Ga., a resident of Fulton county, Ga., to acknowledge or receive service of process and upon whom process may be served in suits against said defendant company."In this amendmentthe plaintiff prayed for the issuance of a second original, with process thereon directed to the sheriff of Fulton county, and that the same should be served upon C. D. Martin, the defendant's agent for that purpose.On March 4, 1922, the amendment was allowed and an order was passed making the following April term the appearance term, and directing that service be made as prayed.This order was complied with and service was perfected upon the defendant thereunder for the April term 1922.

The defendant appeared at this term and demurred to the petition upon the following grounds, among others:

"(1) That plaintiff's petition does not set forth any cause of action against this defendant.

"(2) That plaintiff's petition shows that suit on said policy was not commenced within twelve months next after the happening of the loss as provided by said policy, and is therefore barred.

"(3) That plaintiffs petition shows that there was no authority in this court to pass order making petition returnable to a subsequent term.

"(4) That plaintiff's petition shows that said suit is void, not maintainable, and of no effect."

Also:

"That the original petition filed in this cause shows by its terms that there was no person residing within the county of Floyd upon whom process could be served, for which reason the process that was issued by the clerk, directed to the sheriff of Floyd county, was therefore of no effect and void, and there was no legal process attached to said original petition, for which reason no suit has been legally brought and none was pending on March 4, 1922, at the time plaintiff attempted to amend his petition and procured an order of the court thereon.For which reason defendant prays that said proceeding be held void and of no effect and be dismissed from the docket.At the time plaintiff filed his amendment, on which the court passed an order, to wit, on March 4, 1922, the original process issued on the original petition was functus officio, service not having been perfected prior to the term of court to which the suit was returnable.The suit was therefore no longer pending, and there was no proceeding in court in which the court had the power to grant such an order as was attempted to be granted on March 4, 1922.Further, defendant says, at the time of allowing said amendment and the granting of said order on March 4, 1922, the time in which plaintiff was authorized to bring suit under the terms of the policy had expired.For which reason defendant prays that said proceeding be held void and of no force and effect, and be dismissed from the docket, "

The demurrer was overruled, and to this judgment the defendant excepted.

Tye, Peeples & Tye, of Atlanta, and Lamar Camp and L. A. Dean, both of Rome, for plaintiff in error.

Porter & Mebane, of Rome, for defendant in error.

BELL, J.(after stating the facts as above).That part of section 2564 of the Civil Code which provides that, in an action of the character referred to, service may be perfected upon the insurance company by leaving a copy of the petition or writ where the agency or place of doing business was located in the county at the time the cause of action accrued, or the contract made out of which the same arose, has been held by the Supreme Court to be unconstitutional, because violative of the due process clauses of both the state and the federal Constitutions.Jefferson Fire Insurance Co. v. Brackin, 140 Ga. 637 (2), 79 S. E. 467.The return of service as made by the deputy sheriff upon November 17, 1921, therefore amounted to no service at all, and was properly disregarded.The process attached on the date of the filing of the suit was directed to the sheriff of Floyd county, although the petition shows upon its face that service could not be perfected by this officer, because it appears therefrom that the defendant did not have in Floyd county any agency or place of business at which or any agent upon whom service might be made.If it had appeared In the original petition, as it did later by the amendment of March 4, 1922, that the defendant bad a designated agent elsewhere in the state upon whom service might be perfected, then the clerk should have issued a process directed to the sheriff of the county of the residence of such agent (Jefferson Fire Insurance Co. v. Brackin, supra), but until this fact was alleged the petition did not disclose the possibility of service by any one, and the clerk therefore was powerless to issue a process directed to any officer whomsoever.

Whether it be true that, where a clerk is authorized to issue a process, the fact that the process so issued is directed to the wrong officer will not render the process absolutely void, but merely defective and amendable (see, in this connection, Beasley v. Smith, 144 Ga. 377[2], 87 S. E. 293;Callaway v. Harrold, 61 Ga. Ill;Mitchell v. Long, 74 Ga. 94[3];Richmond & Danville R, Co. v. Benson, 86 Ga. 203[1], 12 S. E. 357, 22 Am. St. Rep. 446;Kelly v. Fudge, 2 Ga. App. 759, 59 S. E. 19;Pearson v. Jones, 18 Ga. App. 448[1], 89 S. E. 536), this could not be the case where the clerk was wholly without power to issue the process at all.Here the averments of the petition were insufficient to confer such authority.

"Void process, or where there is no process or waiver thereof, cannot be amended."Civil Code 1910, | 5693.

"Where a...