Opinion
18938.
SUBMITTED APRIL 12, 1955.
DECIDED MAY 10, 1955. REHEARING DENIED JUNE 15, 1955.
Cancellation. Before Judge Wood. Fulton Superior Court. February 11, 1955.
Noah J. Stone, Benton E. Gaines, for plaintiff in error.
Smith, Kilpatrick, Cody, Rogers McClatchey, contra.
1. "The courts of this State have no extra-territorial jurisdiction, and cannot make the citizens of foreign States amenable to their process, or conclude them by a judgment in personam, without their consent." Dearing v. The Bank of Charleston, 5 Ga. 497 (5) (48 Am. D. 300); City Fire Insurance Co. of Hartford v. Carrugi, 41 Ga. 660; Reynolds Hamby Estate Mortgage Co. v. Martin, 116 Ga. 495 ( 42 S.E. 796); Gates v. Shaner, 208 Ga. 454 (1) ( 67 S.E.2d 569), and cases cited.
2. "A personal judgment is without any validity, if it be rendered by a State court in an action upon a money-demand against a non-resident of the State, who was served by a publication of summons, but upon whom no personal service of process within the State was made, and who did not appear." Pennoyer v. Neff, 95 U.S. 714 (2) ( 24 L. ed. 565); Roller v. Holly, 176 U.S. 398 ( 20 Sup. Ct. 410, 44 L. ed. 520).
3. "Where the want of jurisdiction over the person is apparent upon the face of the bill, it should be taken advantage of by demurrer." Kendrick v. Whitfield, 20 Ga. 379 (3); Mullally v. Mullally, 199 Ga. 708, 709 (2) ( 35 S.E.2d 199); Gates v. Shaner, supra. Under the foregoing rules, the trial judge properly sustained the demurrers of the nonresident wife.
4. The cases of DeLacy v. Hurst, Purnell Co., 83 Ga. 223 ( 9 S.E. 1052); Conley v. Buck, 100 Ga. 187 ( 28 S.E. 97); Roach v. Terry, 164 Ga. 421 ( 138 S.E. 902); Keeter v. Bank of Ellijay, 190 Ga. 525, 526 ( 9 S.E.2d 761); Edwards v. United Food Brokers, Inc., 195 Ga. 1 ( 22 S.E.2d 812); People Loan Co. v. Allen, 199 Ga. 537 ( 34 S.E.2d 811); Harper v. Atlanta Milling Co., 203 Ga. 608 ( 48 S.E.2d 89); Von Kamp v. Gary. 204 Ga. 875 ( 52 S.E.2d 591), and similar cases, cited and relied upon by the petitioner, are not in point on their facts with the present case and do not sustain the petitioner's contentions. In the above cases the defendants were residents and personally served with process, or the plaintiffs were the holders of judgments and proceeding in rem against property of non-resident defendants. In Reid v. Gordon, 173 Ga. 168 ( 159 S.E. 708), cited by the petitioner, two Justices dissented and one Justice was absent. If in point on its facts, the Reid case is in conflict with older, full-bench decisions.
5. No right to injunction against the resident defendants is shown by the facts alleged. Code § 55-106; Smith v. Manning, 155 Ga. 209 ( 116 S.E. 813); Keeter v. Bank of Ellijay, supra; Irwin v. Willis, 202 Ga. 463, 464 (2) ( 43 S.E.2d 691, 4 A.L.R. 2d 1265).
Judgment affirmed. All the Justices concur, except Wyatt, P. J., absent on account of illness.
SUBMITTED APRIL 12, 1955 — DECIDED MAY 10, 1955 — REHEARING DENIED JUNE 15, 1955.
Esso Standard Oil Company, a corporation, filed its petition against M. K. Moore, Ruth L. Moore, and A. J. Ellison and wife, and in substance alleged: The Moores reside out of the State, their last known address being Shady Springs, West Virginia. The other defendants reside at a given address in Fulton County, Georgia. In January, 1947, M. K. Moore purchased described real estate in Fulton County, and in January, 1949, he secured a loan on the property in the sum of $10,700, payable in monthly instalments beginning March 1, 1949, as evidenced by a certain deed to secure debt. On the same date the loan was transferred to the Lincoln National Life Insurance Company of Fort Wayne, Indiana. From July, 1952, through February, 1953, the defendant Moore became indebted to the petitioner in the sum of $6,035.70 principal, plus interest, for oil products furnished on open account, as shown by a verified bill of particulars attached. Demand for payment has been made and refused. In January, 1953, the defendant Moore executed and delivered to Ruth L. Moore, his wife, a paper purporting to be a warranty deed conveying to her the property described. The petitioner is informed and believes that the deed was made without consideration and with the intent and purpose of hindering, delaying, and defrauding the creditors of the defendant. The greater proportion of Moore's debt to the petitioner existed at the time of the execution of the deed. The petitioner is informed and believes that Moore was indebted to the United States Government for taxes in the approximate sum of $4,230 at the time of the execution of the deed to Ruth L. Moore. The purported warranty deed is void against the creditors of Moore. Moore does not have sufficient property to respond to any judgment that the petitioner may obtain against him. Accordingly, the petitioner is entitled to have the deed set aside as a voluntary and fraudulent conveyance, and to have it delivered up and canceled. The property described is subject to the first loan deed of the life insurance company. The property is leased to Mr. and Mrs. A. J. Ellison, who are presently residing thereon. In order to protect the property, and satisfy the petitioner's claim, and the claims of others similarly situated, and to keep the loan from becoming in default, it is necessary that a receiver be appointed to collect the rents and apply them on the payment of the mortgage, to sell the property, and to hold the funds subject to the orders of the court. The petitioner has no adequate remedy at law, and brings this petition for itself and other similarly situated, and prays: (a) for process; (b) that the court order service on the defendant Moore by publication; (c) that the property of the defendant M. K. Moore be made subject to the final order of the court; (d) that the alleged deed from M. K. Moore to Ruth L. Moore be declared null and void and be canceled; (e) that some proper, discreet, and responsible person be appointed as receiver to receive the rents and sell the property, and to hold the proceeds until the further order of the court; (f) that the defendants Moore be enjoined and restrained from conveying and encumbering or changing the status of the property; (g) that the defendants Ellison be enjoined from paying further rent to the defendants Moore, and be required to deposit the monthly rental with the clerk of the court pending the appointment of the receiver; (h) that the petitioner have judgment against the defendant M. K. Moore for the sum of $6,035.70 principal, plus interest, and the petitioner's claim be declared a first lien against the property and the rents and proceeds arising therefrom; and (i) for other relief.
The court passed an order directing that service be perfected by publication on the defendants Moore; enjoining the defendants Moore from conveying, encumbering, or changing the status of the property; enjoining the defendants Ellison from paying further rent to the agents of the defendants Moore; and appointing a temporary receiver. A subsequent order was entered declaring service perfected by publication.
The general demurrers of the defendant Ruth L. Moore were sustained, the petition dismissed, and the temporary receiver discharged. The exception is to that judgment.