Pryse v. Cutliffe

Eelton, J. Paul Pryse filed a suit for damages against Ann Cutliffe and Will Cutliffe, in tbe superior court of Baker County, on April 13, 1936, in which he alleged that the defendants were residents of Baker County, and that through their negligence he sustained the injury complained of on August 1, 1934. The sheriff made a return of non est inventus as to both defendants on July 20, 1936. At the July, 1936, term the plaintiff took an order making the January, 1937, term the return term for the suit; and no service being had on the defendants, a like order was taken at said January term, making the July, 1937, term the return term. On June 9, 1937, on application of the plaintiff, reciting that Ann Cutliffe was living in Dougherty County, the judge of the superior court of Baker County issued an order for a second original of said suit to be issued, directing the sheriff of Dougherty County to serve Ann Cutliffe with a copy thereof. . On June 12, 1937, she was served with a copy of the suit by the sheriff of Dougherty County, and on June 19, 1937, she filed a plea to the — 549 — jurisdiction, setting up that at the time of the service, and at all times alleged in the petition, she was a resident of Dougherty County, Georgia, and that the superior court of Baker County had no jurisdiction of her person. No service of any kind was had on the defendant, Will Cutliffe. The plaintiff, on June 21, 1937, then dismissed his petition, paid the costs, and on June 22, 1937, filed practically the same suit against the same defendants in the city court of Albany. The above facts appear from the plaintiff’s petition as amended. Anm Cutliffe was served and demurred to the petition on the ground, among others, that the suit was barred by the statute of limitations. The court sustained this demurrer, and the plaintiff excepted. The question for determination is whether or not, under the facts stated and the law applicable thereto, the plaintiff’s suit, filed in the city court of Albany, was barred by the statute of limitations. The Code, § 3-808, provides: "If a plaintiff shall be nonsuited, or shall discontinue or dismiss his case, and shall recommence within six months, such renewed case shall stand upon the same footing, as to limitations, with the original case; but this privilege of dismissal and renewal shall be exercised only once under this section.” There can be no pending suit in legal contemplation unless it is followed up by due and legal service on the defendant, or service be waived. It clearly appears that when the suit, which was filed in the superior court of Baker County, was served on the defendant, Ann Cutliffe, she was living in Dougherty County, and the only service effected on her was a copy of a second original of said suit, directed to the sheriff of Dougherty County. No service of any kind was had on Will Cutliffe, and the plaintiff voluntarily dismissed his petition on the filing of the plea to the jurisdiction by Ann Cutliffe, in which she set up one ground, namely, that she was a resident of Dougherty County. Bnder the ruling in Rountree v. Key, 71 Ga. 214, if the suit had been served by the sheriff of Baker County, there would have been a pending suit under the facts of this case, for the same reason that was enunciated in the above case, namely, that the suit was' voluntarily dismissed by the plaintiff before there was an adjudication by the court that it had no jurisdiction. Inasmuch as legal service of petition and process may be waived, if it was waived in this case this fact would put the case on all fours with — 550 — the Rountree case, supra. We are of the opinion that when Ann Cutliffe filed a plea to the jurisdiction of Baker superior court on the sole ground that neither she nor her codefendant was a resident of Baker County, she waived any defective service. Void service may be waived by a plea to the merits. Whitfield v. Whitfield, 127 Ga. 419 (56 S. E. 490). So we think that the election to appear and attack the jurisdiction of the court on a ground other than that of defective service was a waiver of the defective service, for the reason that, if the issue raised by the plea to the jurisdiction had been adjudicated against the defendant, such adjudication would have precluded her, as to any other jurisdiccional question which could have been raised by a plea to the jurisdiction, and she could never thereafter have pleaded that she was not properly served. That there was no service, or that the service was imperfect in a pending case, is not a ground of demurrer or motion to dismiss (Livingston v. Marshall, 82 Ga. 281, 11 S. E. 542), and the only way the question of proper service could have been raised would have been by a plea. The ease of First National Bank v. Dukes, 138 Ga. 66 (74 S. E. 789), is not applicable, because in that case there was no waiver of the imperfect service by appearance of any kind. In the case of McFarland v. McFarland, 159 Ga. 9 (105 S. E. 596), there was a plea to the jurisdiction and a traverse of the return of service, and an adjudication by the court of the lack of the court’s jurisdiction and a lack of legal service. Consequently there could have been no valid pending suit. The court dismissed the case for lack of jurisdiction. In the present case there was no such adjudication. 'The suit in this case was voluntarily dismissed. Inasmuch as the defective service was waived as of the time the first suit was dismissed, there was a valid suit pending which was renewable within six months; and the judge erred in holding that the second suit' was barred by the statute of limitations, and in dismissing the petition on general demurrer. Judgment reversed. Stephens, P. J., concurs. Sutton, J., dissents.