Opinion
35993.
DECIDED JANUARY 25, 1956. REHEARING DENIED MARCH 16, 1956.
Action on insurance policy. Before Judge Cooper. Augusta Municipal Court. October 14, 1955.
Hull, Willingham, Towill Norman, W. Hale Barrett, for plaintiff in error.
B. M. Wimberly, contra.
1. ( a) "Under the Civil Code (1910), § 2563 [Code § 56-601], a non-resident insurance company may be sued in the county where the company had an agent and place of doing business when the contract of insurance was made and the cause of action arose, although the company has abandoned its agency in that county and has no agent there at the time of the suit." Peters v. Queen Ins. Co., 137 Ga. 440 ( 73 S.E. 664); Jefferson Fire Ins. Co. v. Brackin, 140 Ga. 637 ( 79 S.E. 467); Seminole County Board of Education v. American Ins. Co., 180 Ga. 661 ( 180 S.E. 229); Hagler v. Pacific Fire Ins. Co., 36 Ga. App. 530 ( 137 S.E. 293). Applying this principle of law to the stipulation of facts contained in the statement of fact appended hereto, the Municipal Court of Augusta had jurisdiction of the defendant insurance company and the trial court did not err in overruling its plea to the jurisdiction.
( b) Pleas to the jurisdiction being in the nature of dilatory pleas must be verified, Code § 81-404, and being personal, must be verified by the defendant, and not by an agent or an attorney ( Colquitt v. Mercer, 44 Ga. 432; Akers v. J. M. High Co., 122 Ga. 279, 50 S.E. 105; White v. North Georgia Electric Co., 136 Ga. 21, 70 S.E. 639; Mumford v. Solomon, 8 Ga. App. 286 (2), 68 S.E. 1075); and, while such a plea, filed by a defendant corporation may be verified by an officer or agent of the defendant corporation, an attorney at law for a defendant corporation who does not profess to be the corporation's agent in any other capacity may not verify a plea to the jurisdiction as "true to the best of his knowledge and belief." Plant Son v. Mutual Life Ins. Co., 92 Ga. 636 ( 19 S.E. 719), and citations. Where, however, as in the present case, a plea to the jurisdiction is defective, in that it is not properly verified, but the parties go to trial on the merits of the plea, making no objection to the defect as to verification, such defect is to be considered waived. ( Wood v. U.S. F. G. Co., 4 Ga. App. 671, 62 S.E. 97; Swint v. Seigler, 30 Ga. App. 675, 118 S.E. 762), and the trial court does not err in considering such defective plea upon its merits.
2. While by the provisions of Code § 70-305 as amended by the act of 1953 (Ga. L. 1953, Nov.-Dec. Sess., pp. 440, 446; Code, Ann. Supp., § 70-305), the stenographic report of the trial of a case may be used in place of a brief of evidence when the immaterial questions and answers and parts of the stenographic report have been stricken, this rule does not contemplate that the original stenographic report will be sent to this court with the excludable portions included and marked out with ink as stricken ( Williamson v. Yakupian, 211 Ga. 61, 84 S.E.2d 15; Anderten v. State, 92 Ga. App. 544, 88 S.E.2d 719); and, where, as in the present case, a stenographic report of the trial is brought to this court as a purported brief of evidence and a mass of immaterial portions are not deleted as contemplated by the rule stated in the Williamson case, supra, but such portions are merely stricken out by drawing through them, there has been no bona fide effort to comply with the requirements of the Code section in question, and this court will not pass upon any assignment of error in the determination of which reference must be made to the purported brief of evidence. The general grounds and the one special ground of the motion for a new trial come within that class, and will not be considered. The judgment of the trial court overruling the motion for a new trial must, consequently, be affirmed.
Judgment affirmed. Gardner, P. J., and Townsend, J., concur.
DECIDED JANUARY 25, 1956 — REHEARING DENIED MARCH 16, 1956.
Paul H. Ricker brought an action in the Municipal Court of the City of Augusta on an insurance policy against Guarantee Trust Life Insurance Company, a corporation organized under the laws of the State of Illinois, to recover certain benefits under the terms of the policy. The defendant filed the following plea to the jurisdiction which was filed by one of its attorneys of record: "Now comes defendant and before filing its demurrers and its plea and answer, makes this special appearance for the purpose of filing this plea to the jurisdiction and plea of improper venue and shows: The defendant is an insurance company, not incorporated under the laws of Georgia, but incorporated under the laws of the State of Illinois. It is doing business in Georgia and has within the State of Georgia only one agency or place of doing business, same being 165 Luckie Street, Atlanta, Fulton County, Georgia. It has no agent or place of doing business in Richmond County. It can be sued and served in Fulton County. Either the Superior Court of Fulton County or the Civil Court of Fulton County has jurisdiction over the defendant and of the cause of action asserted by plaintiff. Neither the Municipal Court of the City of Augusta or any other court in Richmond County has jurisdiction over defendant. Venue is improperly laid in Richmond County and should be laid in Fulton County." The plea was not verified.
Counsel for the respective parties entered into the following stipulation of fact to be used upon the hearing of the plea to the jurisdiction: "The plaintiff and the defendant stipulated the following facts as true, to be used in the hearing on defendant's plea to the jurisdiction and plea of improper venue: The defendant is an insurance company and is not incorporated under the laws of Georgia but is incorporated under the laws of the State of Illinois. At the time of the filing of the present suit, and since, defendant is and has been doing business in Georgia and has within the State of Georgia only one agency or place of doing business, same being 165 Luckie Street, Atlanta, Fulton County, Georgia. During the period of time above mentioned, it has and had no agency or place of doing business in Richmond County nor does it or did it have any agency or place of doing business in any county in Georgia other than the aforestated place in Fulton County, Georgia. At the time the policy of insurance being litigated was sold and delivered, the defendant had more than one agency and place of doing business in the State of Georgia, including an agency and place of doing business in Augusta, Richmond County, Georgia, from which agency the policy sued on was purchased, in addition to an agency and place of doing business in Atlanta, Fulton County, Georgia. The foregoing facts are stipulated as true for the purpose of all trials and hearings in connection with defendant's plea to the jurisdiction and plea of improper venue."
The trial court entered the following judgment on the plea to the jurisdiction: "The within plea to jurisdiction coming on to be heard before me without intervention of jury and on a stipulation of facts and after hearing argument of counsel thereon, it is ordered and adjudged that said plea to jurisdiction is hereby overruled." The defendant assigns error upon that judgment.
Upon the trial of the case, the jury returned a verdict for the plaintiff. The defendant's motion for a new trial, based upon the usual general grounds and one special ground, was denied, and it assigns error upon that judgment also.