Opinion
43078.
SUBMITTED SEPTEMBER 12, 1967.
DECIDED OCTOBER 13, 1967. REHEARING DENIED NOVEMBER 6, 1967.
Garnishment, etc. Fulton Superior Court. Before Judge McKenzie.
James H. Weeks, Howe Murphy, Harold L. Murphy, for appellant.
Vandiver, Barwick Bentley, M. Cook Barwick, John E. Talmadge, for appellee.
The Civil Court of Fulton County was without jurisdiction to issue the instant garnishment in attachment which was based on a tort claim.
SUBMITTED SEPTEMBER 12, 1967 — DECIDED OCTOBER 13, 1967 — REHEARING DENIED NOVEMBER 6, 1967.
James A. Benefield filed a garnishment in attachment against Radiator Specialty Company, a nonresident of Georgia, in the Civil Court of Fulton County. The attachment was made returnable to the Fulton Superior Court. The plaintiff obtained jurisdiction of the defendant in Fulton County by the issuance of process of garnishment on Auto Electric Company of Georgia, Inc., the garnishee. Thereupon, the garnishee filed an answer in Fulton Superior Court stating it owed the defendant certain specified money.
The plaintiff filed his declaration in attachment in Fulton Superior Court alleging that he had been tortiously injured by a product manufactured and distributed by the defendant and sought damages for medical expenses and personal injuries.
The defendant filed an answer and a plea to the jurisdiction in which it was alleged that the cause of action could not proceed because the plaintiff's claim sounds in tort and the attachment was issued by a judge of the Civil Court of Fulton County. The defendant contends the garnishment in attachment was void for the reason that the Civil Court of Fulton County did not have jurisdiction of the subject matter of the case and that the attachment proceedings should have been instituted in Fulton Superior Court.
After hearing argument, the trial judge sustained the plea to the jurisdiction filed by the defendant, ruling that the Civil Court of Fulton County had no authority to issue a garnishment based on a claim for personal injuries and lacked jurisdiction over the subject matter. Appeal was taken from this judgment.
Attachment may issue where a debtor resides out of the state in all cases of money demands, whether arising ex contractu or ex delicto. Code §§ 8-101, 8-102. "Before process of attachment shall issue, the party seeking the same, his agent or attorney at law shall make an affidavit before some judge of the superior court, judge of the county court, or justice of the peace, that the debtor has placed himself in some one of the positions enumerated in this Title, and also the amount of the debt claimed to be due." Code § 8-109. "When the principal amount sworn to exceeds $200, and in any case where the defendant is a nonresident, the attachment shall be returnable to the superior court of the defendant's last residence as to residents of this State, and to any appropriate superior court as to nonresidents." Code Ann. § 8-117 (Ga. L. 1962, pp. 520, 521). The Act setting out the jurisdiction of the Civil Court of Fulton County provides that such court "shall have all the jurisdiction as to subject matter which, at the time of the adoption of said Constitutional amendment, was exercised by justice courts and justices of the peace under the Constitution and laws of this State, and in addition, shall have jurisdiction to try and dispose of all civil cases of whatever nature, except injuries to the person or reputation, concurrent with the superior courts." (Emphasis supplied.) Ga. L. 1956, pp. 3271, 3277.
The plaintiff commenced the attachment proceeding against the defendant, a nonresident, by making an affidavit before a judge of the Civil Court of Fulton County. The amount sworn to exceeded $200 and the attachment was made returnable to the Fulton Superior Court. It is thus apparent that under the general law the plaintiff, appellant here, followed the correct procedure and we would so hold but for the broad, all-encompassing language used by our Supreme Court in construing the jurisdiction of the Civil Court of Fulton County. In Cantrell v. Davis, 176 Ga. 745, 747 ( 169 S.E. 38) it was held: "The language of this exception is so broad as to deny to that court all jurisdiction of cases where a personal injury is the basis of the action, whether directly or indirectly as the origin of a right of action dependent upon certain relationships to the individual whose person may have suffered injury, such as children, father, dependent mother, etc. In other words, the municipal court is entirely without jurisdiction to deal at all with suits which depend upon personal injuries." (Emphasis supplied.) Following that case the Supreme Court in National Surety Corp. v. Boney, 215 Ga. 271 ( 110 S.E.2d 406), reiterated that the civil court lacked jurisdiction to deal at all with suits where the basis of the action depended upon personal injuries. Thus, the Civil Court of Fulton County was without jurisdiction to issue the garnishment in attachment which was based on a tort claim.
The trial judge did not err in sustaining the plea to the jurisdiction.
Judgment affirmed. Jordan, P. J., and Deen, J., concur.