High v. Padrosa , 119 Ga. 648 ( 1904 )

Cobb, J.

1. In the case of Central Railway Company v. Brinson, 109 Ga. 354, which was followed in Johnson v. Southern Railway Company, 110 Ga. 303, each being a decision by six Justices, the rule that the residence of the creditor fixes the situs of the debt was recognized and applied in garnishment cases. This rule was also applied in the cases of Henry v. Lennox-Haldeman Company, 116 Ga. 9, and Beasley v. Lennox-Haldeman Company, Id. 13, each being a decision by only five Justices. Application is now made to review the two decisions first mentioned. Respectable authority may be found on either side of the questions involved in this case; but, after diligent investigation and mature reflection, the court as constituted when the decisions referred to were rendered adopted and followed the line indicated in the opinions in those cases. Some of the members of the bench as at present constituted,vthe writer being among the number, are entirely satisfied with the conclusions then reached, and the decisions will have to stand until the time arrives when there are six Justices who feel disposed to take the contrary view. The case of Molyneux v. Seymour, 30 Ga. 440, is, upon its facts, not in conflict with anything ruled in the cases above referred to. While some of the expressions of Judge Lumpkin may apparently conflict with the principle laid down in those eases, that case at last, as will be seen by the concluding paragraphs of the opinion, turned upon the validity and regularity of a South Carolina judgment which had adjudicated the question that there was, at the time that judgment was rendered, an attachable debt within the limits of South Carolina, and the court simply held that full faith and credit would be given to this judgment.

2. The attachment was issued by an officer authorized to issue attachments, and was regular upon its face. The attachment was not void, and property of the defendant could be lawfully seized thereunder. Whether any of his property had been actually seized was a question that might arise during the progress of the case. The declaration in attachment, as originally filed, showed that that which had been seized under the attachment was a debt due by a resident to a non-resident. In this condition the declaration was demurrable. Beasley v. Lennox-Haldeman Co., 116 Ga. 13 (2). Presumptively the debt referred to was payable in Florida. This presumption was rebuttable, and there was no reason why the plaintiff could not amend the declaration by alleging facts which would have the effect of rebutting the presumption arising from the silence in the original declaration as to the situs of the debt. See, in this connection, Henry v. Lennox-Haldeman Co., 116 Ga. 12.

3. The defendant entered a special appearance for the purpose of raising objections to the proceedings. He filed a defense to the merits, but with a distinct protestation that he did not thereby admit jurisdiction of the court, either as to his person or as to the property in controversy, and distinctly reserved all right to object to the jurisdiction of the court at every stage of the case. A plea to the merits filed under such a reservation did not have the effect to admit the jurisdiction of the court, either as to the person of the defendant or as to the property in controversy. Kahn v. B. & L. Assn., 115 Ga. 459 (3), and cit. See also Associated Press v. United Press, 104 Ga. 51. The court seems to have submitted to the jury at one time the question of jurisdiction and the questions raised by the plea to the merits. So far as the record discloses, there was no objection to this procedure. It would have been more regular to have submitted the question of jurisdiction separately and- distinctly from the questions raised by the plea to the merits. But if the jury had been instructed that if they came to the conclusion from the evidence that the debt was not payable in Georgia they should return a verdict for the defendant on the question of jurisdiction and proceed no further with the case, no harm would have resulted from the irregular submission of the two issues at one time. It seems, though, that the judge instructed the jury, in effect, that if they found in favor of the defendant on the question of jurisdiction, this would be in effect a finding that the fund in controversy was not within the jurisdiction of the court, and that the plaintiff was not entitled to a judgment condemning it to the payment of his debt, but they could then proceed to find against the defendant the amount of the debt due, as a basis for a judgment in personam against him. Under the view we have taken of the case, we think these instructions were erroneous, so far as they authorized the finding of a verdict which should be the basis of a judgment in personam. The plea to the merits, having been filed under the circumstances above indicated, did not alone authorize the rendition of a judgment in personam; and nothing having been done either by the defendant or the plaintiff which would, under the law, authorize such a judgment, the judgment must be reversed.

Judgment in the one case affirmed; in the other reversed.

All the Justices concur, except Simmons, G. J., absent.