Davis v. Davis , 96 Ga. 136 ( 1895 )

Atkinson, Justice.

The facts upon which the questions were made in this case are sufficiently stated in the official report.

The general principles announced in the first, second and third head-notes are such as not to require further elaboration than is therein stated. To a correct -application of ’them to the facts óf this case, it is only necessary that the circumstances under which this litigation arose be briefly stated. The plaintiff's in the petition for interpleader were the executors upon an estate. In the course of its administration, a charge thereon was established in favor of one of the co-respondents for a certain sum of money. The other parties respondent claim that because of a pre-existing lien created thereon or assignment thereof, this fund should be paid to them rather than to the one entitled as devisee under the will. These were conflicting claims to this fund in the hands of the executors. Prima facie, the obligation of the executors was to pay to the devisee, and the burden of showing the contrary would have been upon the other claimant. Being pressed, however, by both claimants, the executors filed a petition praying for interpleader. In this petition the claim of the devisee is plainly and distinctly set forth in such form as that this court might adjudicate its merits. The petition for interpleader states in general terms the claim of the other respondents, alleges that a suit thereon has been brought which is pending in the superior court in which the petition for inter-pleader is filed, and alleges further that this suit against thenl as executors plainly and distinctly sets forth the cause of action of the adverse claimants. No copy of this petition is attached to the petition for interpleader, but leave of reference is prayed to it as the court from time to time may require. Presumably the judge of the superior court had before him the original record of this suit at the time he passed upon the question made in the petition for interpleader; but inasmuch as it was not introduced in evidence upon the hearing, nor certified to this court as such, and inasmuch as no copy of said suit is attached as an exhibit to the petition for interpleader, it could not come up to this court upon this writ of error, either as a part of the record or as a part of the evidence. For this reason this court has not before it such a statement of the claims of these contesting parties as that it can adjudge that the petition for interpleader should have been allowed. Upon the contrary, according to the record as we have it here, there does not appear to be any valid, subsisting, substantial claim to this fund upon the part of any person adverse to the claim of this devisee. We know of no reason why, upon the remittitur being entered in the court below, the petition may not be so amended as to obviate the difficulty which we encounter in deciding the question here. It is readily conceivable how a devisee, by assignment of a specific portion of a legacy, or by the creation of liens thereon, may create such, a right in favor of a third person as would entitle him to assert his title as against the claims of the devisee; and we presume that if, upon a further investigation of this matter with the record complete and the evidence before it, the circuit judge shall find that to this fund in the hands of these executors there are adverse claims, each apparently well founded, by two separate and distinct persons, he will make such order as will serve to protect the executors against loss.

That an affidavit of non-collusion by the plaintiff in propria persona is essential to the maintenance of a petition for interpleader, we do not think is open to serious question; but under our liberal system of pleadings and amendments, we know of no reason why the judge of the superior court may not allow this formal affidavit to be supplied when this case shall again be reinstated in the superior court, and then proceed to final judgment as though it had been originally made.

We think that, upon the facts disclosed in the record, the superior court had jurisdiction of the person of this non-resident respondent. She was represented by attorneys at law, in favor of whose acts liberal presumptions are indulged. These attorneys acknowledged due and legal service, for and on behalf of the defendant, of this petition for interpleader — both of the petition and process; they waived copy and all.other and further service; and up to this time their authority in this respect stands unchallenged upon the face of the record. Conceding even that there is sufficient evidence of the non-residence of this defendant, the affidavit submitted by her in this case does not of itself exclude, the idea of her presence at the time, nor an actual personal direction to her counsel to make for and on her behalf the acknowledgment and waiver upon the petition. It is perfectly consistent with the affidavit made by her, that she was then and there present; and we think this acknowledgment affords sufficient ground and is sufficient authority for the court to proceed to judgment against this respondent as if upon personal service. It is not necessary for us to inquire now and here whether a judgment rendered against her, under such circumstances, would be recognized in other jurisdictions as a judgment in personam. Nor is it necessary to inquire what would be its extraterritorial effect; but we are satisfied that a judgment rendered upon such a service is so far a judgment in personam as to bind all the property of the defendant within the limits of this State and which may be subject to the jurisdiction of the courts of the.State of Georgia. Where parties litigant once submit themselves to the jurisdiction of the court, the court, having obtained, will retain jurisdiction of their persons and property, at least to the extent of awarding judgment in favor of citizens resident within this State, and will not, by the dismissal of a remedy, compel them to assert their .rights in foreign jurisdictions.

Judgment on main bill of exceptions reversed.

Judgment on cross-bill of exceptions affirmed.