Summary
In Worley Bros. Granite Co. v. Haskins, 105 Ga. App. 444 (124 S.E.2d 663) (1962), this court held that a defendant in an attachment proceeding had waived his earlier objection to personal jurisdiction by filing a counterclaim (referred to as a "cross-action") against the plaintiff because defendant thus assumed the position of a plaintiff seeking affirmative relief.
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39175.
DECIDED FEBRUARY 14, 1962. REHEARING DENIED MARCH 6, 1962.
Attachment, etc. Elbert Superior Court. Before Judge Skelton.
Payne, Heard Leverett, E. Freeman Leverett, for plaintiff in error.
Woodrow W. Lavender, contra.
A nonresident defendant by filing a cross-action submits himself to the jurisdiction of the court.
DECIDED FEBRUARY 14, 1962 — REHEARING DENIED MARCH 6, 1962.
Worley Brothers Granite Company, Inc. (hereinafter referred to as the plaintiff) caused process of attachment to be issued against J. L. Haskins (hereinafter referred to as the defendant), and caused a truck and trailer of the defendant to be seized and levied upon under and by virtue of said process of attachment. The purported affidavit upon which the process was issued did not state any ground for the issuance of the process of attachment, and it was not signed by an officer, agent or attorney of the plaintiff, but merely had, as the purported affiant, the words and letters "Worley Bro. Gr. Co." written thereon.
Under the provisions of Code § 8-701, the defendant replevied the property by giving a bond. A preamble to the bond states: "Now comes J. L. Haskins, by his agent R. G. Haskins, and without acknowledging the jurisdiction of the court and specifically objecting to the attachment returned to said court . . . on the grounds that said attachment is not supported by an affidavit as required by Section 8-109, of the Annotated Code of Georgia, on the grounds that no legal cause for attachment is alleged as required by Section 8-101, of the Annotated Code of Georgia, and that no bond was given by plaintiff to support the issue of the writ of attachment, and subject to the above objection and without acknowledging jurisdiction of the court [the defendant] files the following replevy bond, to wit: . . ."
Thereafter, the plaintiff presented to the court an amendment to its purported attachment which, in effect, substituted a new affidavit and bond and which was allowed subject to objection and demurrer. The same was filed on the 10 day of September, 1959. No objection or demurrer was filed to this amendment. Within the time provided by law the plaintiff filed its declaration in attachment.
The defendant filed a written motion that the attachment be dismissed upon the grounds: "(a) The face of the attachment does not show any grounds whatsoever for an attachment and is in fact absolutely silent as to same. (b) Attachment is signed by `Worley Brothers Granite Co.' and does not show any person or authority for signing same in said manner. (c) The bond on said attachment is signed by `Worley Brothers Granite Co.' as principal which does not indicate the authority for signing same as such and without showing who signed as `Worley Brothers Granite Co.'"
At a hearing on December 7, 1959, the court sustained the defendant's motion and dismissed the attachment. Immediately after the court had entered an order dismissing the attachment, the plaintiff filed a motion for a judgment by default upon its declaration in attachment which was granted. This judgment was vacated during the same term of the court. There is no exception to this ruling.
On February 24, 1961, the defendant filed a plea to the jurisdiction and a demurrer to the declaration in attachment. He also filed an answer which included a cross-action, seeking to recover from the plaintiff the sum of $9,215.00. To the defendant's plea to the jurisdiction the plaintiff filed a general demurrer upon the grounds that the pleadings show that the defendant had submitted himself to the jurisdiction of the court by replevying the property and by filing a cross-action.
By agreement of counsel, the issues made by the plea to the jurisdiction and the demurrer thereto were tried by the court sitting as a judge and jury. Over the objection of the plaintiff the court allowed the defendant to withdraw his answer and cross-action, and thereafter, over the objection of the defendant the court allowed the plaintiff to introduce the defendant's answer and cross-action in evidence. By agreement of the parties, all other pleadings and orders in the case were put in evidence. It was admitted that the defendant was a nonresident of Georgia and was a resident of the State of Texas.
The court, after taking the matter under advisement, sustained the defendant's plea to the jurisdiction and dismissed the plaintiff's declaration in attachment.
The plaintiff assigned error on the following rulings of the trial court: (a) The order of December 7, 1959, dismissing the attachment. (b) The court's ruling which allowed the defendant to withdraw his answer and cross-action. (c) The order overruling the plaintiff's general demurrer to the plea to the jurisdiction. (d) The judgment sustaining the defendant's plea to the jurisdiction and order dismissing the declaration in attachment. The last assignment of error is upon the grounds that the same is contrary to law and contrary to evidence, because the defendant made a personal appearance by replevying the property and by filing an answer and cross-action.
Ordinarily, the giving of a replevy bond in an attachment proceeding constitutes a personal appearance. Code § 8-901. However, "The giving of a replevy bond does not preclude a defendant in attachment from objecting to the jurisdiction of the court over his person." Drake v. Lewis, 13 Ga. App. 276 ( 79 S.E. 167). See also Associated Press v. United Press, 104 Ga. 51 ( 29 S.E. 869); Harper v. Allen, 41 Ga. App. 736 ( 154 S.E. 651); Duke v. Automobile Supply Co., 21 Ga. App. 608 ( 94 S.E. 915); Ga. Procedure Practice, § 26-12. In every case we have found holding that the defendant submitted himself to the jurisdiction of the court by making a replevy bond, there is no reference to whether an objection or protestation was made to the jurisdiction.
We have reached the opinion that the defendant preserved his objection to the court's jurisdiction of his person up to and until the time he filed a cross-action.
The rule is well stated in 3 Am. Jur. 792, Appearances, § 18: "The filing of a set-off, a counterclaim, a demand in recoupment, or a cross-petition, is such an assumption of the role of actor in a suit as will constitute a general appearance, even though the defendant asserts therewith an objection to the jurisdiction of the court, and submits the person of the defendant to the jurisdiction of the court to all intents and purposes as fully and completely, and with the same force and effect, as if the summons had been duly and personally served on him within the jurisdiction of the court." See also Adam v. Saenger, 303 U.S. 59 ( 58 SC 454, 82 LE 649); 6 C.J.S. 10, Appearances, § 1.
The defendant by filing a cross-action assumed the position of a plaintiff seeking affirmative relief against the party who originally brought the action. Hudgins Contracting Co. v. Redmond, 178 Ga. 317 ( 173 S.E. 135). See also Ray v. Home Foreign Invest. c. Co., 106 Ga. 492 ( 32 S.E. 603). Once a defendant has made a general appearance and submitted himself to the jurisdiction of the court, he cannot oust the court of jurisdiction of his person by dismissing his cross-action over the objection of the plaintiff. Cf. Associated Press v. United Press, 104 Ga. 51, supra, and Ray v. Home Foreign Invest. c. Co., 106 Ga. 492, supra. This is not to intimate that a party cannot voluntarily dismiss a cross-action, but we do hold that a defendant cannot eradicate the court's jurisdiction over his person when the defendant dismisses his cross-action over the objection of the plaintiff. Associated Press v. United Press, 104 Ga. App. 51, supra, is distinguishable from the facts in this case because in that case there was no objection to the defendant withdrawing his answer for the purpose of filing a demurrer raising the question of jurisdiction, and thereafter refiling his answer. The defendant in the Associated Press case, supra, obtained an order of the court permitting him to withdraw his answer. The court held (page 53): "By applying for this order, counsel for the defendant directly invoked the ruling of the court upon the question whether, as matter of right, the defendant could withdraw its answer previously filed, and, by refiling the same subject to its demurrer and motion to dismiss, relieve itself of the consequences of any implied waiver of the jurisdiction of the court. Having obtained a favorable decision upon the legal question thus presented, the defendant was entitled to the benefit thereof, as the plaintiff practically acquiesced in the subsequent refusal of the court to revoke its ruling, by failing to take exception thereto in order that its correctness might be open to question upon a review of the case in this court." In the instant case the bill of exceptions shows that the plaintiff objected to the voluntary dismissal of the defendant's answer and cross-action, and the plaintiff did all that it could have done to preserve its right to have a review of the ruling of the court adverse to it.
Accordingly, the trial court erred in sustaining the defendant's plea to the jurisdiction and in dismissing plaintiff's declaration in attachment, because the defendant waived his plea to the jurisdiction by filing a cross-action.
The court did not err in dismissing the purported attachment because the attachment was initiated upon a void instrument purporting to be an affidavit. Since a corporation, an artificial person, cannot make an affidavit ( Coffee v. McCaskey Register Co., 7 Ga. App. 425, 429, 66 S.E. 1032), the instrument was not an affidavit, and an amendment cannot make it one. See Craig v. Taylor, 35 Ga. App. 375 ( 133 S.E. 278); Meadows v. Alexander, 1 Ga. App. 40 ( 57 S.E. 901). Void proceedings are not amendable. Smith v. Andrews, 70 Ga. 708; Meinhard Bros Co. v. Neill, 85 Ga. 265 ( 11 S.E. 613); Moore c. Co. v. Neill, 86 Ga. 186 ( 12 S.E. 222). Process of attachment must be based upon a proper affidavit. Code § 8-109. While an amendment can serve to supply a fact to an already existing affidavit ( Code § 81-1203), it cannot supply an attestation to make a writing into an affidavit nunc pro tunc. See Nix v. Citizens Bank of Moultrie, 34 Ga. App. 546 (2) ( 130 S.E. 597). With the attachment dismissed, the declaration in attachment remained, which became a common law suit when the defendant submitted to the court's jurisdiction over his person. See Williams v. Flanders, 35 Ga. App. 644 ( 134 S.E. 183), and cases cited therein.
Judgment reversed in part, affirmed in part. Nichols, P. J., and Jordan, J., concur.