Opinion
36035.
DECIDED MARCH 8, 1956.
Trover. Fulton Civil Court — Appellate Division. November 29, 1955.
R. B. Pullen, for plaintiff in error.
Brown Shoob, contra.
Where a defendant is sued in a court which without resort to waiver may under certain conditions have jurisdiction of his person, a return of service untraversed and regular upon its face is conclusive as to the jurisdiction of the court over the defendant's person. Under such circumstances a motion to set aside the judgment based on the contention that the defendant is a nonresident of the State, this fact not appearing in the record of the case, will not lie where such defendant fails to traverse the return of service at the first term after notice, and make the sheriff a party thereto.
DECIDED MARCH 8, 1956.
The South Side Atlanta Bank filed a trover action against D. M. Norris in the Civil Court of Fulton County on January 11, 1955. The marshal purportedly served the defendant by delivering a copy of the action to Mrs. Norris, wife, etc., 706 Neely Avenue, East Point, Georgia. No appearance was made on behalf of the defendant and the case came on for trial on March 22, 1955, at which time the plaintiff took a judgment in personam against the defendant for the value of the property as alleged in the petition. The judgment, of course, was for damages against the plaintiff for the alleged conversion of the property.
On July 22, 1955, the defendant filed a motion to set aside said judgment as void and of no effect for the reason that the defendant was a nonresident of Georgia at the time the suit was filed and at the time judgment was entered and that he had no knowledge of the filing of said suit or the existence of said judgment before the July term, 1955, of the Civil Court of Fulton County. The defendant stated in his action that he had not appeared or pleaded or waived jurisdiction, either by person or counsel, and, therefore, had not had his day in court and prayed that the judgment rendered therein be set aside as void for the reason that the court had no jurisdiction over his person and that the court could not render a valid judgment against him.
The attorney for the plaintiff in the original case moved to dismiss the defendant's action to set aside the judgment on the grounds that it was in the nature of a motion in arrest of judgment and was not filed during the term at which said judgment was rendered, and for the reason that said motion also was in the nature of a traverse of service and the marshal was not made a party thereto.
The defendant contended that the motion was neither in arrest nor a traverse of service but went to the jurisdiction of the court only, and would have been supported by testimony necessary to prove the facts respecting the jurisdiction of the court. Counsel for the defendant recognizes the possibility that the motion may have been subject to special demurrer but at least sufficient facts were alleged to raise the question of jurisdiction of the court and it was, if subject to special demurrer, amendable and should not have been dismissed. No opportunity was afforded to amend as no question as to the sufficiency of the allegations was made.
After argument of counsel, the Hon. A. L. Henson, the judge before whom the motion was heard, passed an order sustaining the plaintiff's motion to dismiss the motion to set aside and vacate the judgment, whereupon the defendant entered his appeal to the appellate division of the Civil Court of Fulton County. The appellate division, after considering the appeal, entered an order of affirmance, and this latter judgment is assigned as error.
Ordinarily a motion to set aside a judgment lies only for defects on the face of the record. Artope v. Barker, 74 Ga. 462; Sweat v. Latimer, 119 Ga. 615 ( 46 S.E. 835). But "even though the defect may not appear upon the face of the record, a court of law is not deprived of jurisdiction to grant relief against judgments irregularly or improperly obtained, upon timely application by petition, with rule nisi or process and service upon the necessary parties." Schofield's Sons Co. v. Vaughn, 40 Ga. App. 568 ( 150 S.E. 569). Thus where there is no jurisdiction of the court over the person of the defendant, the question may be raised by equitable petition or motion to set aside in the nature thereof. McKnight v. Wilson, 158 Ga. 153, 161 ( 122 S.E. 702); Anderson v. Turner, 35 Ga. App. 428 ( 133 S.E. 306). Where the record shows on its face that the court is without jurisdiction of the defendant's person, failure to traverse the entry of service or plead to the jurisdiction will not preclude the defendant from seeking to have the judgment set aside. Ivey v. State Mutual Ins. Co., 200 Ga. 835, 838 ( 38 S.E.2d 601).
In all other circumstances, under Code § 81-214, the sheriff's entry of service must be traversed at the first term after notice thereof or it will be conclusive. Winecoff v. Weeden, 142 Ga. 552 ( 82 S.E. 1057); Jennings v. Davis, 92 Ga. App. 265 ( 88 S.E.2d 544). The exception is where, with actual service, the court would have had no jurisdiction of the defendant or the subject matter of the suit. Maund v. Keating, 55 Ga. 396. In McKnight v. Wilson, supra, where the defendant was a nonresident of the State and the facts are substantially similar to the facts here alleged, the sheriff's entry of service was traversed. In Anderson v. Turner, supra, the sheriff was made a party in an independent petition to set aside the judgment filed by the judgment defendant and facts were alleged to show that the movant was a resident of another county of this State, which fact, if true, would make it impossible for the court in the absence of waiver to obtain jurisdiction over his person in any manner in the county in which the judgment against him had been obtained. Here the sheriff is not made a party, the return is not traversed, and it would be possible for the nonresident defendant to become subject to the jurisdiction of the court of the county where judgment was obtained by being served personally in such county. It is difficult to see how the defendant could attempt to prove that the court had no jurisdiction over his person and at the same time admit the truth of the entry of service that he was "served at his most notorious place of abode." The return of service should have been traversed and the sheriff was certainly a necessary party to the issue thus formed.
Accordingly, the trial court did not err in sustaining the motion to dismiss the motion to set aside the judgment, and the judgment of affirmance of the appellate division of the court is without error.
Judgment affirmed. Townsend and Carlisle, JJ., concur.