Lewallen v. Rogers

100 Ga. App. 267 (1959) 110 S.E.2d 596

LEWALLEN
v.
ROGERS.

37788.

Court of Appeals of Georgia.

Decided September 14, 1959. Rehearing Denied September 29, 1959.

Herbert B. Kimzey, Kimzey & Kimzey, for plaintiff in error.

Emory F. Robinson, Wheeler, Robinson, Norton & Thompson, contra.

NICHOLS, Judge.

1. The defendant's residence on the date on which suit is filed and summons served determines the county wherein an action for damages may be instituted against him. Weatherly v. Cotter, 142 Ga. 457 (83 S.E. 104).

2. Under the uncontradicted testimony of the defendant in this case, at the time suit was instituted against him in the City Court of Habersham County, and service purportedly perfected, he was a resident of Fulton County, Georgia, and the Superior Court of Fulton County, as alleged in the plea to the jurisdiction, had jurisdiction of the person of the defendant and not the City Court of Habersham County. Neither the residence of the defendant at the time of the alleged tort, nor his residence at the time of the hearing of the plea would have any bearing on the question for decision. Accordingly, the trial judge did not err in sustaining the plea to the jurisdiction and in dismissing the petition.

Judgment affirmed. Felton, C.J., and Quillian, J., concur.

On August 7, 1958, Johnny T. Lewallen filed suit in the City Court of Habersham County, Georgia, against John Edgar Rogers, seeking damages for injuries to person and property allegedly sustained in an automobile accident occurring in Habersham County, Georgia, on April 18, 1958. The petition alleged that the defendant was a nonresident of the State of Georgia, his last known address being Walhalla, South Carolina. The defendant filed his plea to the jurisdiction of the City Court of Habersham County, wherein he alleged that at the time of the filing of the petition against him he was a citizen and resident of Fulton County, Georgia, and that the Superior Court of Fulton County had jurisdiction over him and not the City Court of Habersham County. By agreement of counsel, the plea to the jurisdiction was tried before the judge of the city court, sitting without a jury, on all issues of law and fact. At the conclusion of the evidence and after argument of counsel for plaintiff and defendant, the trial judge found in favor of the plea to the jurisdiction and entered up judgment thereon dismissing the petition. To these judgments the plaintiff excepts and assigns error thereon to this court.