Opinion
17312.
FEBRUARY 14, 1951.
Petition to modify decree. Before Judge Shaw. Fulton Superior Court. September 18, 1950.
Francis G. Jones Jr., for plaintiff.
Wilkerson Wilkerson and John P. Wilkerson, for defendant.
In this equitable proceeding seeking to modify a decree awarding the custody of children, the forwarding by registered mail of a copy of the petition and ex parte order did not subject the non-resident defendant to the jurisdiction of the court.
No. 17312. FEBRUARY 14, 1951.
On November 6, 1946, John Cypert Briggs, a resident of Fulton County, Georgia, obtained in said State and county a divorce from
Mary Lynn Maura Briggs, a resident of Escambia County, Florida. The decree, rendered in accordance with an agreement entered into between the parties, awarded custody of their two minor children to the mother during each year from September 1 through June 30, and to the father from July 1 through August 31 of each year. The agreement, which was made the decree of the court, contained no provision inhibiting the removal of the children from the jurisdiction of this State, but on the contrary expressly recognized that they would be domiciled in Pensacola, Florida, during the ten-month periods when they were in their mother's custody.
On August 25, 1950, the father filed in Fulton Superior Court, against the mother, a petition alleging that he had custody, pursuant to said divorce decree, and that due to a change of conditions since the divorce suit the mother was not a fit and proper person to retain custody. The petition contained a prayer that the father be granted permanent custody of the two minor children.
The trial judge entered an ex parte order which granted the father permission to keep the children until further order of court. The ex parte order provided that the petition to modify the order awarding custody should be served instanter upon a named person alleged to be an attorney of record for the mother, that the clerk of court should "mail by registered mail a copy of the order and petition to the defendant at 1602 North Twelfth Avenue, Pensacola, Florida," and that the attorney for the father should likewise mail a copy of the petition and order to the defendant mother.
The mother filed a plea to the jurisdiction and a traverse of service. After hearing evidence showing that the named attorney had not represented the mother since 1947, but that copies of the petition and order had been mailed to the mother as required in the ex parte order, the trial judge sustained the mother's plea to the jurisdiction and traverse of service, and dismissed the father's petition for want of jurisdiction. The father excepted.
Code § 81-204 declares: "If the defendant in an equitable proceeding shall not reside in the State, service of the petition or any order of the court may be made by publication. If the nonresident defendant shall be represented in court by an attorney at law or in fact, service on such attorney shall be sufficient. In all cases not embraced within the foregoing provisions, the judge may prescribe extraordinary service according to the exigencies of each case."
In the present equitable proceeding to modify a former decree, no attempt was made to serve the non-resident mother by publication. Under the uncontradicted evidence, the mother was not represented in court by the attorney upon whom service was attempted to be made. The trial judge attempted to "prescribe extraordinary service" by ordering that the clerk of court and the attorney for the father should "mail by registered mail a copy of the order and petition" to the non-resident defendant mother. This court said in Milner v. Gatlin, 139 Ga. 109, 113 (2) ( 76 S.E. 860): "The courts of one State have no power to change the status of citizens of another State. Besides, the proceedings to reform required service of citation, and at least so much of the judgment as awarded the custody of the child to the father was treated as a judgment in personam. But it may be said that C. W. Milner was served with notice of the application to reform the original decree, by the Sheriff of Pike County, Georgia. This service goes for naught, because the authority of a court to issue and serve process is restricted to the territory of the State where issued, and the court has no power to require persons not within such territory to appear." In John Hancock Mutual Life Insurance Co. v. Baskin, 179 Ga. 86, 87 (2) ( 175 S.E. 251), it was said: "Even though the petition in the instant case prayed for an order directing how service could be perfected on a non-resident corporation, the law prescribes how such service should be perfected, and the mere forwarding by registered mail of a copy of the petition, process, and order did not subject the non-resident defendant to the jurisdiction of the court. Coral Gables Corporation v. Hamilton, 168 Ga. 182 (10) ( 147 S.E. 494)."
The present case differs on its facts from Pendley v. Tumlin, 181 Ga. 808 (3), ( 184 S.E. 283); Simpson v. Bradley, 189 Ga. 316, 319 (4), ( 5 S.E.2d 893); Blount v. Metropolitan Life Insurance Co., 190 Ga. 301 ( 9 S.E.2d 65).
Applying the above principles to the pleadings and evidence, the forwarding by registered mail of a copy of the petition and ex parte order did not subject the non-resident defendant to the jurisdiction of the court. Accordingly, the trial judge did not err in sustaining the traverse of service, and in dismissing the petition.
Judgment affirmed. All the Justices concur.