Jordan v. Charles S. Martin Distributing Co.

Quillian, J. The court erred in holding that the motion to set the judgment aside came too late to avail Mrs. Jordan as a remedy in protesting that the judgment was void, in that the court, at the time it was rendered, had no jurisdiction of her person. It has been said by our appellate courts that the only difference between a motion in arrest and motion to set aside a judgment is the respective times in which they are required by statute to be made (Artope v. Barker, 74 Ga. 462; Regopoulas v. State, 116 Ga. 596 (1), 42 S. E. 1014), that is, the motion in arrest of judgment must be filed during the same term as that at which the judgment was obtained, while a motion to set aside such judgment may be made at any time within three years after the judgment attacked was rendered. Presiding Judge Jenkins (later Justice of the Supreme Court), in the splendidly worded and well-considered case of Schofield’s Sons Co. v. Vaughn, 40 Ga. App. 568 (150 S. E. 569), citing Ford v. Clark, 129 Ga. 292, 294 (58 S. E. 818), written at the time he graced this bench, pointed out that this statement was not entirely accurate because the motion to arrest a judgment could only assail the judgment for defects appearing on its face, while the motion to set a judgment aside may be predicated either on defects appearing upon the face of the record or on those that are de hors the record. It is the rule that the motions are of similar nature and do perform the common function of affording the means of striking down a judgment rendered by a court [189] not having jurisdiction, and in this respect the difference in the two motions does consist merely of the time in which they may be made. A judgment rendered by a court having no jurisdiction of the person of the defendant, unless the defendant has waived -jurisdiction, may be set aside on motion of the defendant at any time within three years, the period fixed by Code § 3-702. Anderson v. Turner, 35 Ga. App. 428 (133 S. E. 306). It will be observed that this case is distinguishable from cases in which a party voluntarily submits himself to the jurisdiction of a court, which otherwise has no jurisdiction of him. In the instant case the nonresident defendant was compelled to file defensive pleadings because she was joined with a resident defendant, and both were named joint tortfeasors. The court had jurisdiction of the resident defendant, and no plea to the jurisdiction was available to Mrs. Jordan. But, when the resident defendant was removed from the case, no basis remained for the jurisdiction of the court under the law. Pleading to the merits when she was legally required so to do, and at a time when the court had jurisdiction, did not constitute a waiver on her part of the court’s lack of jurisdiction of her person. Christian v. Terry, 36 Ga. App. 815 (138 S. E. 244); Central of Ga. Ry. Co. v. Brown (113 Ga. 414) (38 S. E. 989, 84 Am. St. R. 250); Warren v. Rushing, 144 Ga. 612 (87 S. E. 775). The judgment of the trial court sustaining the general demurrer to the nonresident defendant’s motion to set aside the judgment against her was erroneous and must be Reversed. Gardner, P. J., Carlisle, and Nichols, JJ., concur. Townsend, J., concurs specially. Felton, C. J., dissents.