Union Marine Fire Ins. Co. v. McDermott

• Decision Date: 25 February 1924
• Docket Number: 14723.
• Citation: Union Marine Fire Ins. Co. v. McDermott, 31 Ga.App. 676, 121 S.E. 849 (Ga. App. 1924)
• Parties: UNION MARINE FIRE INS. CO. v. MCDERMOTT.
• Court: Georgia Court of Appeals

121 S.E. 849

31 Ga.App. 676

UNION MARINE FIRE INS. CO. v. MCDERMOTT.

No. 14723.

Court of Appeals of Georgia, Second Division

February 25, 1924

Rehearing Denied March 1, 1924.

Syllabus by the Court.

"Where a petition setting out a cause of action has been filed and followed up by the issuance of process and service, the time of the commencement of the suit is the date of its filing.But where, after such filing, no process of any character was issued and annexed to the petition, nor waived, before the commencement of the term to which the petition was made returnable, there was in fact no suit pending.The filing of the petition without more does not operate to commence a suit; nor has the judge in such a case authority, at or after the return term, to order a new process to issue."While there was a so-called process in the instant case, it was void, and, applying this ruling, the court erred in not sustaining the general demurrer and dismissing the petition.

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.

Stephens J., dissenting.

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 had 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. 111;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 petition setting out a cause of action has been filed and followed up by the issuance of process and service, the time of the commencement of the suit is the date of its filing.But where, after such filing, no process of any character was issued and annexed to the petition, nor waived, before the commencement of the term to which the petition was made returnable, there was in fact no suit pending.The filing of the petition without more does not operate to commence a suit; nor has the judge in such a case authority, at or after the return term, to order a new process to issue."Nicholas v. British America Assurance Co.,109 Ga. 621, 34 S.E. 1004.

See, also, Chapman v. Central of Georgia Railway Co.,20 Ga.App. 251 (1), 92 S.E. 1025.

In none of those cases in which it has been held that, when, without negligence of the plaintiff, there has been a failure of service, the court might, at or after the appearance term, order a new process, and that a service then made would be valid (among these casesseeAllen v. Mutual Loan & Banking Co.,86 Ga. 74[1], 12 S.E. 265;Sims v. Sims,135 Ga. 439 [[1], 69 S.E. 545), had there been a previous total absence of process.In the Nicholas Case the Supreme Court further said:

"It is freely conceded that in cases where the process attached is irregular or defective, the same may be cured by amendment under the order of the judge; but the provisions of law which apply to the amendments of process do not obtain in a case where there is an entire absence of any original process."

In that case the clerk had issued a process, but not until after the appearance term had passed, and therefore not until his power to do so had been lost.It was held, the original process being void, the judge was without authority at or after the return term to order the issuance of a new process.That case differs from the case at bar only in the fact that here the power of the clerk to issue the process was never conferred, because the petition was wholly insufficient for that purpose, in that it did not disclose that there was any officer to whom the process might be directed.In this respect the petition is unlike that in Jefferson Fire Insurance Co. v. Brackin,140 Ga. 637 (2), 79 S.E. 467, for in that case"the petition alleged that the defendant company had duly appointed and authorized a named person resident in another county of the state to acknowledge or receive service of process and upon whom process might be served in suits against the company."The clerk had before him this averment of the suit when issuing the process directed to the sheriff of that county.

"In this

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