Harrison v. Lovett , 198 Ga. 466 ( 1944 )

1. Where a suit was filed by a resident of Florida against a citizen of this State in a city court of the county of his residence, and the party sued filed an equitable petition in the superior court of the same county, alleging equitable defenses and praying that the suit in the city court be enjoined and that he be granted equitable remedies, and where a rule nisi was issued by the superior court, and served on the attorney of record for the plaintiff in the city-court suit, the superior court did not err in overruling a special plea to the jurisdiction based on the ground that service on the attorney was not service on his non-resident client.

2. An objection to the omission of a prayer for process and to failure to attach process, should precede an attack on service; and where there is a special appearance for the purpose of objecting to jurisdiction of the person for lack of service, but the omission of a prayer for process and the omission of process is not attacked, such omissions as to process are waived.

3. Where a non-resident files a suit at law in a city court upon an action arising ex contractu, the defendant, in order to avail himself of the right of equitable set-off, may apply to the superior court as a court of equity, enjoin the common-law proceeding, and there set off damages arising ex delicto. The superior court will take jurisdiction of the entire controversy and make a decree doing complete justice.

4. The court did not err in overruling the special demurrers.

5. The court did not err in overruling the motion for new trial on the special grounds.

6. The evidence was sufficient to authorize the verdict, and the court did not err in overruling the motion for new trial on the general grounds.

No. 14979. OCTOBER 13, 1944. This case was tried in Decatur superior court. Prior to the filing of the suit, other litigation between the parties was pending in the city court of Bainbridge. Those proceedings were enjoined and the issues tried in the present case. W. F. Harrison, of Panama City. Florida, had foreclosed in the city court of Bainbridge a reservation-of-title contract executed by C. E. Lovett, a resident of Decatur County, covering an automobile. The foreclosure proceedings were instituted a few days after the retention-title contract was executed, and before any payments thereon had become due. The amount alleged to be due was $747.54. The contract was dated January 19, 1938, the first payment was due February 20, 1938, and the foreclosure was on January 31, 1938. Also, on February 3, 1938, which was before the first payment was due, Harrison filed a suit against Lovett in the city court of Bainbridge on the reservation-of-title contract, seeking a judgment for $747.54, the amount alleged to be due thereon. He alleged that he had declared the entire amount due, because the terms of the contract had been violated by reason of Lovett's illegal transportation of liquor in the automobile. Based on this suit, Harrison garnisheed Lovett's account in a local bank.

While the foregoing proceedings were thus pending in the city court of Bainbridge, Lovett filed in the superior court of Decatur County an equitable petition, in which he alleged in substance the litigation then pending in the city court of Bainbridge, and that about the middle of February, 1938, and before any payment was due on the retention-title contract, he drove the automobile to Dothan, Alabama, where under the instruction and command of Harrison it was seized and forcibly taken from him and delivered to Harrison; that a day or two after purchasing the automobile he offered to return it to Harrison if Harrison would return to him the amount of the cash payment of $400, less reasonable hire, but Harrison refused to do so, claiming that the sum paid should go as liquidated damages; that after Harrison illegally seized the automobile he refused to return to him any part of the down payment; and that, after seizing and taking possession of the car, Harrison refused to return to him any part of the cash payment, and further refused to dismiss the suit pending in the city court of Bainbridge unless Lovett would pay court costs and attorney's fees, which dismissal would automatically dismiss the garnishment proceedings by which his funds were being held up in the bank. He further alleged that his defense to the pending suit in the city court of Bainbridge was equitable, and called for equitable relief; that said city court was without equitable powers; and that he could not there prosecute his counter-suit for damages based upon the conduct of Harrison. He alleged that he was not indebted to Harrison in the pending city court suit, and incorporated in his petition a copy of those proceedings and his answer to that suit; and alleged that the superior court should, under its equitable powers, enjoin the city-court suit, and take charge of and assume jurisdiction of said cause. The petition enumerated damages, as having been occasioned "by prematurely foreclosing the reservation of title contract," in the sum of $1000; "in bringing suit in the city court of Bainbridge on an obligation not due, and forcing petitioner to employ counsel to defend the same," in the sum of $1000; "in suing out said garnishment . . and tying up petitioner's available funds" in the sum of $1000; "in illegally and without right or authority taking from petitioner his automobile and converting the same to his own use, the worth and value of said automobile, in the sum of $1147.54." (There was no demurrer attacking any one of the plaintiff's claims for particular elements of damage on the ground that the previous suit in the city court had not terminated in favor of Lovett.) Lovett claimed and alleged that he was without an adequate remedy at law, and prayed that his petition be sanctioned and ordered filed; that the suit in the city court of Bainbridge be enjoined; that the superior court take jurisdiction thereof; that Harrison be required to show cause why the petitioner's prayers should not be granted; for judgment; and for general relief.

Upon the filing of the petition, the court issued a rule nisi, directing that Harrison show cause why the prayers should not be granted, and "that the defendant or his counsel of record be served." The petition and order were served on H. G. Bell, the attorney who had filed the suit for Harrison against Lovett in the city court of Bainbridge. To this petition, Harrison filed a special plea to the jurisdiction, on the ground that service on Bell as attorney was not legal service on him; that Bell did not represent him in the instant suit; and that service on Bell was not binding on Harrison. The court passed an order overruling this plea. On the hearing of general and special demurrers, filed by Harrison, the court, after sustaining certain grounds of special demurrer, overruled the general grounds and the remaining special grounds. To the order overruling his special plea to the jurisdiction, and the order overruling the general and special demurrers, Harrison filed exceptions pendente lite.

On the trial of the case, the jury returned a verdict in favor of Lovett for the $400 down payment on the car, less $75 rent, and for $500 damages. A motion for new trial was filed, and amended with thirty-nine grounds, and Harrison excepts to the overruling of the motion. (After stating the foregoing facts.) 1. The special appearance to the jurisdiction, filed by Harrison, was based on the ground that he had not been served with the petition and rule; that the service on H. G. Bell was not service on him, as Bell was not representing him as attorney in this particular proceeding. The petition alleged that Harrison, a resident of Panama City, Florida, had filed a suit against Lovett in the city court of Bainbridge. A copy of this suit, which was attached to the petition, showed that it had been filed by H. G. Bell as attorney. As a general rule, the courts of this State have no extraterritorial jurisdiction, and cannot make citizens of other States amenable to their process, or conclude them by a judgment in personam; but where a non-resident voluntarily institutes a suit in this State, he submits himself, for all purposes of that suit, to the jurisdiction of the courts of the county in which the suit is pending (Crawley v. Barge, 132 Ga. 96, 63 S.E. 819; Gordy v.Levison Co., 157 Ga. 670 (1,2), 122 S.E. 234; Anderson v. Black, 191 Ga. 627, 13 S.E.2d 650); and where such a suit "is pending in a court of limited jurisdiction, which for want of power can not afford full relief, the defendant, by proper proceeding in the superior court" of that county, may enjoin the prosecution of the suit, and "set up and have adjudicated as to the non-resident plaintiff all matters necessary for his complete defense." Moore v. Medlock,101 Ga. 94 (28 S.E. 836); Home Mixture Guano Co. v. Woolfolk,148 Ga. 567 (97 S.E. 637). Rule 2 of the superior courts (Code of 1933, § 24-3362), has been superseded by Rule 26 (Ga. Code Ann., § 24-3326), which reads as follows: "The service of any notice, process, motion, rule or order of the court on the attorney of record for any party to a cause pending in any court in this State shall be deemed sufficient service." In view of the foregoing, the court did not err in overruling the special plea to the jurisdiction, on the ground that service on the attorney was not service on Harrison.

2. While the special appearance by Harrison to object to the jurisdiction of the superior court was based on lack of proper service, it is certified by the trial judge in the exceptions pendente lite to the overruling of this motion, that there was then an oral motion to dismiss the petition because it contained no prayer for process and no process was attached to the petition, and that the motion was overruled. Assuming, without deciding, that a prayer for process, and process, are essential in the instant proceeding (despite the inferences deducible from the language in Remley v. DeWall, 41 Ga. 466, 476;Caswell v. Bunch, 77 Ga. 504; and Warren v. Federal LandBank, 157 Ga. 464, 122 S.E. 40, 33 A.L.R. 45), in order properly to present the question, an attack on the lack of process should have preceded the objection as to service of the petition, or else the question as to lack of process should have been raised in the special appearance objecting to the service. The Code, § 81-209, provides: "Appearance and pleading shall be a waiver of all irregularities of the process, or of the absence of process, and the service thereof." In filing a general demurrer without protesting the court's lack of jurisdiction due to the omission of process, that defect was waived. Dykes v. Jones,129 Ga. 99, 103 (58 S.E. 645); Wilson v. Augusta,165 Ga. 520 (141 S.E. 412); Bower v. Avery, 172 Ga. 272 (4) (158 S.E. 10).

Under our procedure, the prayer for process and process precede service. If there is no prayer for process the person sued is not a party defendant; and the mere acknowledgment of service upon a petition, and a waiver of service of the petition, are not a waiver of a prayer for process, or a waiver of process.Seisel v. Wells, 99 Ga. 159 (1, 2) (25 S.E. 266). One who is not a party by reason of the absence of process, but who appears and contests the manner of service, will necessarily waive any defect in reference to process. Any objection to the omission of a prayer for process, and to the failure to attach process, should precede an attack relating to service; and where there is a special appearance for the purpose of objecting to jurisdiction of the person for lack of service, but the omission of a prayer for process or the omission of process is not attacked, such omissions as to process are waived. Accordingly, there was no error in overruling the motion to dismiss the petition on the grounds that it contained no prayer for process and that no process was attached.

3. By both general and special demurrers, the petition was attacked on the ground that Lovett, in his equitable petition in the superior court, claimed damages arising ex delicto, and sought to set up such damages as a defense to the contract sued on in the city court of Bainbridge. The exact question here raised has been ruled adversely to this contention. In Hilton v. Rogers, 152 Ga. 658 (111 S.E. 33), it was said: "``Damages arising ex delicto can not be set off against a cause of action arising ex contractu, but a defendant sued at law upon a cause of action arising ex contractu may, in equity, set off damages arising ex delicto, when the plaintiff is insolvent or a non-resident. And if the plaintiff's suit is pending in a city court, the defendant, in order to avail himself of such right of equitable set-off, may apply to the superior court as a court of equity, to enjoin the common-law proceeding in the city court and take jurisdiction of the entire controversy between the parties and make a decree doing complete justice between them.' Arnold v. Carter, 125 Ga. 319-325 (54 S.E. 177); Hecht v. Snookc. Co., 114 Ga. 921 (41 S.E. 74); Ray v. Anderson,119 Ga. 926 (47 S.E. 205)." The petition set forth a cause of action, and the court did not err in overruling the general demurrer thereto.

4. The court did not err in overruling the special demurrers. Ground 1 was a general demurrer. Ground 2, as to service, is covered by the rulings in division 1 of this opinion. Ground 3 recited that a mortgage fi. fa. was attached to the petition, though the affidavit upon which it was based was not attached, and this recitation was immediately followed with the statement that it is "presumed as a matter of law, without it appearing otherwise, that the execution was issued on legal affidavit." Such a ground of demurrer raises no question for decision. The objection raised by the 4th ground was stricken by amendment. Ground 5 was directed at paragraphs 9 and 10 of the petition, which related circumstances under which the car was seized and taken from Lovett by Harrison, and the demurrer asserted that there was no allegation as to Harrison being entitled under the contract to do so. The allegations in paragraphs 13 and 19E that the car was taken from Lovett illegally and without right or authority, were sufficient to meet this ground of demurrer. The objectionable matter attacked by the 6th ground was stricken by amendment. Ground 7 was directed to paragraphs 12 and 13, containing allegations relied upon by Lovett, which, unless Harrison established a breach of the contract by showing an illegal transportation by Lovett of whisky in the car, were germane to his case. Ground 8 was directed at paragraphs 14 and 15 of the petition, which alleged that Harrison had seized the automobile, refused to return any part of the cash paid, and refused to dismiss the suit upon the note and the garnishment proceedings unless Lovett paid $20 court costs and $75 attorney's fees; the ground of demurrer being that it does not appear that Lovett had paid such note. The payment of the note was not essential to the cause of action. Grounds 9 and 10, asserting that no facts are set up to show cause for equitable relief, are covered by division 3 of this opinion relating to the general demurrer. Ground 11 was directed to paragraph 18 of the petition, which denied indebtedness on the suit in the city court. This was a proper allegation. Grounds 12 and 13A are covered by division 3 of this opinion relating to the general demurrer. Ground 13B, C, and E, to the effect that the petition does not deny the violation of the retention-title contract, or show that it was not due, are merely assertions which are contrary to a reasonable interpretation of the petition. The objection in ground 13D, as to the petition showing that the garnishment proceeding was instituted prior to the recovery of the automobile, is without merit. Grounds 14 and 15 are covered by the ruling in division 3 of the opinion relating to the general demurrer.

5. Grounds 1 through 14 and ground 39 of the motion are predicated upon lack of process, jurisdiction, or service, attack the contents of the pleadings, and are grounds which were, or should have been raised by plea or demurrer. Such as were so raised are covered by rulings made in divisions 1 and 2 of this opinion. Under grounds 15 and 16, the evidence offered by Harrison to show transactions by him with a discount company in an effort to discount the purchase-money note executed to him by Lovett, was properly excluded as being hearsay and irrelevant to the issues. Ground 17 is an exception to the ruling of the trial judge in excluding testimony by Harrison as to items of cost totalling $349.95, which he sought to recover from Lovett. The brief of evidence discloses that Harrison did testify in detail as to the various items constituting this total. Grounds 18, 19, 25, 31, 32, 33, 35, and 36 are based upon the exclusion of testimony offered by Harrison. Upon examination of each of these grounds, we find that there was no error in excluding such testimony, since the evidence set forth under each ground was inadmissible as being hearsay. Under grounds 20, 21, 22, 23, 24, 26, 28, 30, and 34, certain testimony adduced on the trial to establish the contentions of Harrison is set forth, and it is contended that in view of this evidence the verdict for Lovett was contrary to law. None of the evidence demanded a verdict. Each item of evidence related to a disputed issue, and is covered under the general grounds of the motion for new trial. Under ground 27, the exclusion of the answer of the witness was not error, it appearing from the question and answer that the trial judge correctly interpreted the answer as a conclusion of the witness. Ground 29 is based upon the exclusion of a letter offered by Harrison. Neither the letter being incorporated, nor the substance thereof being stated, in this ground, it is incomplete and presents no question for decision by this court. Each ground of a motion for new trial must be complete and understandable within itself; and reference to other grounds, the brief of evidence, the charge of the court, or to other parts of the record, should not be required in order to understand assignments of error. Such rulings have been so often announced by this court that citations are unnecessary.

Ground 37 asserts error in the following portion of the charge: "I charge you, gentlemen, in this case, that if the plaintiff has carried the burden of proof upon him by law, and if he has established his case to your satisfaction, you should find a verdict in favor of the plaintiff; and in that connection I charge you this, in every tort there may be aggravated circumstances, either in the act or the intention, and in that event the jury may give additional damages, either to deter the wrongdoer from repeating the trespass or as compensation for the wounded feelings of the plaintiff." The last portion of this charge is in the language of the Code, § 105-2002. The only exception to the charge is that it "was error." Where an excerpt from an instruction of the court is excepted to generally without indicating any specific defect, and the charge in the abstract is correct, giving such excerpt in charge will not be held erroneous. Jefferson v. State, 131 Ga. 28 (61 S.E. 997);Higdon v. Williamson, 140 Ga. 187 (3) (78 S.E. 767);Chancey v. State, 145 Ga. 12 (3) (88 S.E. 205). Ground 38 is an exception to a portion of the charge which states the amount of damages claimed by Harrison in his cross-bill. The amount designated in the charge was $349.95, which was the amount alleged in paragraphs 14, 15, and 16 of the cross-bill.

Accordingly, it was not error to overrule the motion for new trial on any of the special grounds of the motion.

6. The evidence was sufficient to authorize the verdict, and the court did not err in overruling the motion for new trial on the general grounds.

Judgment affirmed. All the Justices concur, except Duckworth,J., who dissents.