Henry v. Mann , 134 Ga. App. 522 ( 1975 )

134 Ga. App. 522 (1975) 215 S.E.2d 286

HENRY
v.
MANN et al.

50343.

Court of Appeals of Georgia.

Argued March 3, 1975. Decided April 8, 1975.

Fred W. Minter, for appellant.

WEBB, Judge.

An action to recover $1,488 on open account was filed on February 24, 1974 in the State Court of DeKalb County by James T. Henry against Robert M. Mann and L. H. Hawkins, residents of DeKalb County, and O. M. Mann, a resident of Rockdale County, for survey work performed for them on property owned by them in DeKalb and Rockdale counties. The jury returned a verdict in favor of the resident defendants, and a verdict against only the nonresident defendant, O. M. Mann, for $1,200 principal, plus interest and costs. Judgment thereon was entered, then an order arresting judgment against the nonresident O. M. Mann was entered by the court.

Subsequent to the foregoing Henry again instituted the same action against the three alleged debtors, this time in the Superior Court of Rockdale County. All three of the defendants asserted the defense of res judicata based on the results in the State Court of DeKalb County between the parties; the two defendants resident of DeKalb County pleaded to the jurisdiction of the Superior Court of Rockdale County and denied any indebtedness to Henry; and O. M. Mann denied that he was indebted to Henry "in the amount sued for." Robert M. Mann and L. H. Hawkins cross claimed for $500 attorney fees. The trial judge sustained the plea of res judicata as to all defendants on November 7, 1974, and from this judgment the plaintiff appeals. Held:

Since neither of the residents of DeKalb County nor the petitioner excepted to the verdict and judgment in DeKalb State Court, the verdict and judgment conclusively eliminated those two DeKalb County residents and were final as to them. Ryner v. Duke, 206 Ga. 408, 409 (57 SE2d 171) (s. c., 205 Ga. 280, 53 SE2d 362). There having been no recovery against the two resident defendants in the State Court of DeKalb County, that court could grant no relief against the nonresident Rockdale County defendant (Fowler v. Southern Airlines, 192 Ga. 845 (8), 851 (16 SE2d 897), and citations), the verdict and judgment were not final as to him, and the plea of res judicata as to him falls. The arrest of judgment, the court having lost jurisdiction of him, was equivalent to his dismissal as a party defendant because of lack of jurisdiction, and the plaintiff was entitled to renew this suit against him in Rockdale County. See Moore v. Tootle, 134 Ga. App. 232.

The judgment is reversed and remanded to the trial court with the direction that the plea of res judicata be sustained as to the two defendants resident of DeKalb County, and denied as to the defendant resident of Rockdale County.

Judgment reversed and remanded with direction. Bell, C. J., and Marshall, J., concur.