Godfrey v. Kirk

Deen, Presiding Judge.

Case No. 62944 is an appeal from a motion to set aside a judgment domesticating a Florida divorce and alimony decree. The action did not begin as an action to domesticate a foreign judgment but as a petition for injunctive relief to prevent the appellant from “calling, coming about, bothering, harassing, molesting, or in any wise interfering with the [appellee] . . .” Personal service of the original petition was effected on May 16, 1978; and the appellee’s prayer for temporary injunctive relief was granted on May 30,1978. The appellant never filed an answer, and no further action was taken in the case until January 30, 1981, when the appellee filed an amendment praying for the domestication of the Florida decree. Attached to the amendment was a certificate of service which stated that a copy of the petition had been mailed to the appellant at an address in Hope Mills, North Carolina. Based on the appellant’s failure to respond to the amendment within 30 days, the trial court on March 3,1981, entered an order domesticating the foreign decree. On March 13, 1981, the appellant moved to set this judgment aside for lack of personal jurisdiction.

Case No. 62945 is an appeal from an order denying the appellant’s traverse to a summons of garnishment filed against the United States of America as garnishee to collect the Florida judgment. The appellee has moved to dismiss this appeal as untimely filed. Held:

1. The amendment to the complaint was improper, and consequently the motion to set aside the domestication judgment should have been granted. Code Ann. § 81A-115 (a) allows a party to “amend his pleading as a matter of course and without leave of court at any time before the entry of a pre-trial order. Thereafter, the party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice requires.” While no pre-trial order had been entered in this case prior to the filing of the amendment, the time had long since passed when entry of a pre-trial order would have been appropriate. The basic purpose of a pre-trial order is to prepare a case for trial by limiting and simplifying the issues and the evidence. See generally Code Ann. § 81A-116. The action for injunctive relief had been in default for almost three years at the time the amendment was filed, and consequently there were no issues to be tried. Under these circumstances, the appellee was no longer entitled to amend her complaint to assert a new claim without obtaining either leave of court or the written consent of the appellant. Furthermore, in view of the fact that the appellant had left the jurisdiction and was no longer subject to personal service, leave of court to file this type of amendment would not have been appropriate even had it been requested. Accord Doe v. McMillan, 566 F2d 713, 720 (DC CA 1977). See generally 3 Moore’s Fed. Practice Par. 15.08 [4], pp. 15-91, et seq. Indeed, it is extremely doubtful that such a “bootstrap” method of asserting jurisdiction over a non-resident would be constitutionally permissible even if the statute allowed it.

In ruling that the judgment domesticating the Florida decree should have been set aside pursuant to Code Ann. § 81A-160 (d), we do not reach the issue of whether the decree could have been enforced in this state by an action in rem, without obtaining personal jurisdiction over the appellant. Cf. Williamson v. Williamson, 247 Ga. 260 (2) (275 SE2d 42) (1981).

Decided February 11, 1982 Rehearing denied March 3, 1982 in case no. 62944.

2. (a) An order overruling a traverse to garnishment is not, as contended by the appellant in case 62945, a final judgment, and an appeal from such a ruling is premature. Marbut Co. v. Capital City Bank, 148 Ga. App. 664 (252 SE2d 85); Knox v. Knox, 151 Ga. App. 144 (259 SE2d 150) (1979); Turner v. Wood, 159 Ga. App. 850 (285 SE2d 589). The overruling of a traverse is not appealable in and of itself.

(b) However, the order overruling the defendant’s traverse also contains the following: “Further ordered that the Clerk of the Superior Court of Muscogee County, Ga., shall disburse to plaintiff’s attorneys all funds currently being held by the Clerk pursuant to summons and resummons of garnishment in the above matter.” This constitutes a final judgment in the case awarding the funds paid in by the garnishee to the plaintiff. As stated in Caswell v. Caswell, 157 Ga. App. 710 (278 SE2d 452) (1980) it is final because it leaves the parties with no further recourse in the trial court. In this it differs from Marbut and other cases above cited.

3. But although the record contains a final judgment it also appears that we must nevertheless dismiss this garnishment appeal due to the appellant’s failure either to file his notice of appeal within 30 days, as required by Code Ann. § 6-803 (a), or obtain an extension of time pursuant to Code Ann. § 6-804.The notice of appeal contained in the record transmitted by the trial court bears a filing date of June 11,1981. This is 31 days from the date of entry of the order denying the traverse. The appellant has attached to his brief in opposition to the motion to dismiss a copy of the notice of appeal which bears a filing date of June 10,1981, rather than June 11. However, the proper forum for correction of the trial court’s record is not this court but the trial court, pursuant to Code Ann. § 6-805 (f). See Boats for Sail, Inc. v. Sears, 158 Ga. App. 74 (1) (279 SE2d 314) (1981); Henderson v. Lewis, 128 Ga. App. 28 (1) (195 SE2d 289) (1973). On the basis of the record properly before us, we have no choice but to conclude that the appeal in the garnishment action was untimely filed and consequently to dismiss it for lack of jurisdiction.

Judgment reversed in Case No. 62944. Appeal dismissed in Case No. 62945.

Carley, J., concurs. Banke, J., concurs specially. James A. Elkins, Jr., for appellant (case no. 62944) Jerry D. Sanders, for appellant (case no. 62945). Ernest Kirk II, for appellee.