Opinion
44575.
SUBMITTED JULY 9, 1969.
DECIDED OCTOBER 31, 1969.
Action on foreign judgment. Dougherty Superior Court. Before Judge Marshall from Southwestern Circuit.
Smith, Gardner, Wiggins, Geer Brimberry, Peter Zack Geer, for appellant.
A foreign judgment is entitled to receive the same faith and credit in every other State that is accorded to it in the State where rendered.
SUBMITTED JULY 9, 1969 — DECIDED OCTOBER 31, 1969.
The plaintiff sued defendant in Dougherty Superior Court upon a judgment rendered against defendant in the Circuit Court of Benton County, Arkansas. The defendant filed a plea in bar, a demurrer and an answer. In his answer, defendant alleged that he was never legally served in the State of Arkansas or in any other State and had no notice whatsoever of the pendency of the Arkansas suit.
The case was tried without a jury by agreement of both parties under the following stipulation: On December 20, 1963, the plaintiff filed a suit against Billy Foster and Jim Foster for damages arising out of an automobile collision, alleging that plaintiff was a resident of Benton County, Arkansas, and that both defendants were residents of Ratcliffe, Little River County, Arkansas. The summons was never returned or served by the Sheriff of Little River County, Arkansas. On May 20, 1964, another summons was issued to the Sheriff of Little River County, Arkansas, which was never returned or served on either of the defendants. Thereafter, on September 23, 1964, the plaintiff had defendant Billy Foster served under the Nonresident Motorists Act of Arkansas, through the Secretary of State of that Commonwealth. The defendant Jim Foster was never served in any manner whatsoever. On October 8, 1965, default judgment was taken against both defendants, Jim Foster and Billy Foster, in the amount of $2,069.50, based upon the service upon the defendant Billy Foster under the Nonresident Motorists Act of the State of Arkansas. Plaintiff dismissed his action in the Superior Court of Dougherty County, Georgia, against the defendant Jim Foster.
The defendant Billy Foster was a resident of the State of Oklahoma at the time the alleged cause of action accrued in the State of Arkansas. The Nonresident Motorists Act of the State of Arkansas is in all material rights, including the mode of service therein provided, the same as the Nonresident Motorists Act of the State of Georgia. Counsel for both sides agreed as stipulated that, under the pleadings in the Superior Court of Dougherty County, Georgia, the question of jurisdiction of the Arkansas Court rendering judgment is properly raised.
A copy of the Arkansas judgment as well as a copy of the complaint in the Arkansas litigation and a copy of all summonses issued in Arkansas on said complaint including the service upon the defendant Billy Foster under the Nonresident Motorists Act through the Secretary of State of Arkansas, were submitted to the trial court for consideration, and were a part of the stipulation of counsel.
The trial court entered judgment for the plaintiff and the defendant appeals from this ruling.
It is basic hornbook law that a foreign judgment generally is entitled to receive the same faith and credit in every other State that is accorded to it in the State where rendered; therefore, a foreign judgment is not entitled to full faith and credit where the court rendering it had no jurisdiction over the person. 50 CJS 473, § 889; 30A AmJur 328, § 262.
"In an action brought against a nonresident for injuries sustained in a motor vehicle accident in the State of the forum, wherein service of process is sought or has been effected against the nonresident by substituted service under a non-resident motorists act, it is generally held that the complaint must allege that service of process against the nonresident may be effected pursuant to the nonresident motorists act." 8 AmJur2d 438, § 886. The Georgia Nonresident Motorists' Act ( Code Ann. Ch. 68-8), like that of all other State, is in derogation of the common law and must be strictly construed. Tomlinson v. Sadler, 99 Ga. App. 482, 484 ( 109 S.E.2d 84); Mull v. Taylor, 68 Ga. App. 663, 670 ( 23 S.E.2d 595). It is inapplicable where the defendant is a resident of the State. Young v. Morrison, 220 Ga. 127 ( 137 S.E.2d 456); Davis v. Holt, 105 Ga. App. 125, 130 ( 123 S.E.2d 686). Furthermore, it has not been altered by the Civil Practice Act of 1966 ( Code Ann. Ch. 81A). Therefore, where a plaintiff sued on a foreign judgment and the judgment roll is put into evidence showing on its face that the court of the State rendering the judgment sued on had no jurisdiction over the person the same is void, i.e., jurisdiction over the person of an Arkansas resident could not be acquired by service under the Arkansas Nonresident Motorists Act. Way v. Turner, 80 Ga. App. 814 ( 57 S.E.2d 439); Greenfield v. Chronicle Printing Co., 107 Ga. App. 442 ( 130 S.E.2d 526); Allied Finance Co. v. Prosser, 103 Ga. App. 538 ( 119 S.E.2d 813); Lurey v. Jos. S. Cohen Sons Co., 86 Ga. App. 356 ( 71 S.E.2d 689).
Is the above principle of law altered in any way by the fact it has been stipulated in the court below that the defendant was in fact a nonresident of Arkansas at the time the alleged cause of action occurred? In our opinion it does not. If a judgment is void, then there is nothing to correct for the reason that it is an inherent defect that is beyond cure. Georgia Procedure and Practice, 473, § 21-19 (1957).
The trial court erred in entering judgment for the plaintiff.
Judgment reversed. Jordan, P. J., and Whitman, J., concur.