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In Burch v. Crown Laundry, 78 Ga. App. 421, 424 (50 S.E.2d 768), this court ruled that "Although, the purported process attached to the petition.. was void, and although its service was void, and although process was not waived by any act or conduct of either of the corporations at whom the void process was directed, yet the plaintiffs had filed petitions in court showing a plaintiff and a defendant, and setting out sufficiently and specifically some particular fact or transaction as a cause of action.
Summary of this case from Banister v. HubbardOpinion
32182, 32183, 32184.
DECIDED DECEMBER 3, 1948. REHEARING DENIED DECEMBER 16, 1948.
Actions for damages; from Whitfield Superior Court — Judge Paschall. July 3, 1948. (Application to Supreme Court for certiorari.)
D. W. Mitchell, S. P. Carr Jr., W. H. Bolling, H. E. Mitchell, for plaintiffs.
Pittman Hodge, H. E. Kinney, for defendants.
1. Where, notwithstanding the fact that a petition contains no prayer for process, the clerk affixes what purports to be process thereto, and a copy thereof is served upon the defendant, the action of the clerk in affixing such purported process to the petition and copy thereof to the copy of the petition, is without authority. Such purported process and its service are void. Such defect is not amendable so as to give validity to the void process and its service.
2. Such void process and its service amount to no process and no service. This results in a want of jurisdiction appearing on the face of the proceedings; and an appearance, on the part of the person at whom such void process was directed and upon whom it was served, by motion complaining of the want of the jurisdiction of the court, is not such an appearance as will result in a waiver of the process and service.
3. The omission of a prayer for process from a petition is an amendable defect.
DECIDED DECEMBER 3, 1948. REHEARING DENIED DECEMBER 16, 1948.
The plaintiffs in error, Charles Burch, R. D. Higgins, and Herman Robertson, hereinafter referred to as the plaintiffs, each brought separate actions for damages, in the Superior Court of Whitfield County, against the defendants in error, Crown Laundry and Crown Dye Company, corporations, hereinafter referred to as the defendants.
The petitions in each case contain no prayer for process. The clerk of the superior court nevertheless affixed process, and the same was served in each case upon the defendants. Counsel for the defendants thereupon filed written motions which, although the motions pointed only to this defect appearing upon the face of the record in each case, was sworn to by an officer of the corporations. Said motion in each case was as follows: "Now come Crown Laundry and Crown Dye Company, named defendants in the above-stated case, and move to quash the process and to dismiss the petition and for grounds show: 1. The petition shows upon its face that the process was annexed to the petition by J. F. Anderson, clerk, without authority of law, because there is no prayer for process contained in the petition and, therefore, said process was a nullity as to the defendants, and the same should be quashed and dismissed for want of process and service. 2. Since there is no prayer for process in said petition, Crown Laundry and Crown Dye Company are not legal parties to said action and this court lacks jurisdiction of such parties due to the omission of such prayer for process. 3. Crown Laundry and Crown Dye Company move to quash the service of said petition, because there is no valid process authorizing such service by Roy Ritchey, Deputy Sheriff of Whitfield County. Wherefore defendants pray the judgment of the court." Thereupon the plaintiffs in each case offered an amendment to their petitions, praying for process, on each of which the trial judge entered an order as follows: "This amendment having been presented before the hearing on the plea filed by the defendants, the same is disallowed. This 3rd day July, 1948."
The trial court also entered a judgment on each of the motions of the defendants as follows: "Upon consideration the within plea is sustained and the petition dismissed. This 3rd day of July, 1948."
Error is assigned upon each of these judgments and orders in each of said cases.
1. Process is the means whereby the court compels the appearance of a defendant before it for a compliance with its demands. See Neal-Millard Co. v. Owens, 115 Ga. 959, 961 ( 42 S.E. 266). To every petition there must be annexed a process unless the same be waived. Code, § 81-201. If there be no prayer for process and the clerk proceeds to attach a process without the same, this action on the part of the clerk is without authority; the person against whom it is directed is not thereby made a party to the case ( Seisel Co. v. Wells, 99 Ga. 159 (1) 25 S.E. 266); and unless process be waived, service upon such person does not give the court jurisdiction to render a judgment against him. See Brady v. Hardeman Hamilton, 17 Ga. 67; Ross v. Jones, 52 Ga. 22; Killen v. Compton, 60 Ga. 116, 117; Scarborough v. Hall, 67 Ga. 576; McGhee v. Mayor, 78 Ga. 790 ( 3 S.E. 670); J. K. Orr Shoe Co. v. Kimbrough, 99 Ga. 143 ( 25 S.E. 204); Nicholas v. British America Assurance Co., 109 Ga. 621 ( 34 S.E. 1004); Seisel Co. v. Wells, supra; Jackson v. Jackson, 199 Ga. 716 ( 35 S.E.2d, 258).
Therefore it necessarily follows that the purported process and its service upon the corporations at whom it was directed is void and of no effect.
2. Section 81-501 of the Code provides as follows: "Pleas to the jurisdiction shall be pleaded in person, and must, when relied on, be pleaded specially, unless a want of jurisdiction shall appear on the face of the proceedings, in which case it may be taken advantage of on motion."
In the instant case, the lack of prayer for process appears on the face of the proceedings. Under the authority previously cited, where the clerk proceeds to annex process in the absence of a prayer for it, his action in this respect is without authority, and the process is therefore void. The process being void, its subsequent service is likewise void. These defects appear on the face of the proceedings, because the absence of the prayer for process so appears. The corporations in the instant cases at which the purported process was directed appeared to attack the jurisdiction of the court in the manner provided by law. This is not an appearance for the purpose of pleading to the merits, and an appearance of this character does not constitute a waiver of process.
3. Although the purported process attached to the petition in the instant case was void, and although its service was void, and although process was not waived by any act or conduct of either of the corporations at whom the void process was directed, yet the plaintiffs had filed petitions in court showing a plaintiff and a defendant, and setting out sufficiently and specifically some particular fact or transaction as a cause of action. Section 81-1301 of the Code provides as follows: "All parties, whether plaintiffs or defendants, in the superior or other courts, whether at law or in equity, may at any stage of the cause, as matter of right, amend their pleadings in all respects, whether in matter of form or of substance, provided there is enough in the pleadings to amend by." Section 81-1302 provides in part as follows: "A petition showing a plaintiff and a defendant, and setting out sufficient to indicate and specify some particular fact or transaction as a cause of action, shall be enough to amend by."
The omission of the prayer for process from a petition is an amendable defect. See Barnes-Fain Co. v. Chandler, 148 Ga. 158 ( 66 S.E. 179); Glover v. Glover, 151 Ga. 574 ( 107 S.E. 861); Loudermilk v. Bailey, 159 Ga. 514 ( 126 S.E. 373); Babcock Bros. Lumber Co. v. Hughes, 29 Ga. App. 20 (1) ( 113 S.E. 816).
The judgment of the trial court sustaining that part of the motion which sought to have quashed the purported process and its service was proper. However, when the plaintiffs offered to amend their petitions so as to pray for process, the trial court should have allowed the amendments. The effect of this would not be to give validity to the void process or its service, but would have authorized the clerk to issue valid process as of the time of the allowance of the amendments praying for the same. While the process was void and should have been quashed, there was nothing wrong with the petitions that could not be cured by amendments. The judgment of the trial court disallowing the amendments and dismissing the petitions, therefore, was in each case error.
Judgment affirmed in part and reversed in part; reversed with direction that the proffered amendments for prayer for process be allowed, and that the clerk be directed to issue process based thereon as of the time of the allowance of the amendments, the same to be served as now provided for by the Code (Ann. Supp.), § 81-201 (Ga. L. 1946, pp. 761, 768). MacIntyre, P. J., and Gardner, J., concur.