Opinion
35728.
DECIDED JUNE 28, 1955.
Attachment. Before Judge Craigmiles. Thomasville City Court. March 29, 1955.
C. E. Hay, for plaintiff in error.
Titus, Altman Johnson, contra.
1. Where the declaration in attachment does not show that the defendant was subject to the jurisdiction of the court, the trial court erred in overruling the defendant's general demurrer to the declaration.
2. An amendment that does not perfect the allegations as to jurisdiction is not allowable.
3. A ruling on a motion to dismiss is the law of the case until vacated or reversed.
DECIDED JUNE 28, 1955.
On November 10, 1954, W. D. McDaniel sued out a writ of attachment against Robert L. Harris, in which he alleged in part that "Robert L. Harris is indebted to him in the sum of five hundred dollars, and that the said debtor absconds." The attachment was levied, and the defendant filed his plea to the jurisdiction, which alleged in part: "Defendant was not at the commencement of this action, and is not now, a citizen of Thomas County, Georgia, but was then, and still is, a citizen of Lowndes County, Georgia. For this reason the City Court of Thomasville has no jurisdiction over the person of this defendant, but the City Court of Valdosta or the Superior Court of Lowndes County, at plaintiff's option, does have such jurisdiction." Thereafter the plaintiff filed his declaration in attachment and the defendant filed his demurrer thereto, in which it was alleged in paragraph 1: "Said declaration in attachment contains no allegation that the defendant is a resident of this county, nor does it otherwise show the jurisdiction of this court over the person of the defendant." The declaration was twice amended, and each time the defendant in attachment renewed his demurrer. Such demurrer was overruled on March 29, 1955. He also filed an objection to the allowance of the second amendment, in which paragraph one alleged that, "As said declaration in attachment now stands, it does not show the jurisdiction of the court. If said proffered amendment be allowed, said declaration as so amended still would not show the jurisdiction of this court." This objection was overruled on March 29, 1955, and the amendment allowed. On March 22, 1955, the case came on for trial upon the defendant's plea to the jurisdiction, and the plaintiff made an oral motion to dismiss such plea upon the ground that it was insufficient in law. The plaintiff's motion was denied and a jury stricken. A motion by the plaintiff for a mistrial was sustained. Later on March 29, 1955, the plaintiff made a written motion to dismiss the plea to the jurisdiction, which was sustained. The defendant excepts to this ruling on the ground that the previous ruling on the oral motion to dismiss was the law of the case. He also assigns error on the overruling of his general demurrer to the plaintiff's declaration, and to the overruling of his objection to the allowance of the second amendment to the declaration.
1. The trial court overruled the defendant's demurrer to the plaintiff's declaration. The demurrer stated that the petition did not show the jurisdiction of the court over the person of the defendant. Article VI, section XIV, paragraph VI of the Constitution of 1945 (Code, Ann., § 2-4906) provides in part: "All other civil cases shall be tried in the county where the defendant resides." There is no provision in the Constitution for any exception to this rule in attachment cases. "A declaration in attachment, like any other petition, must show the jurisdiction of the court." Smith v. Jacksonville Oil Mill Co., 21 Ga. App. 679 (3) ( 94 S.E. 900). The Code, § 8-117, referring to where attachments are returnable, provides in part: "When the amount sworn to shall exceed the sum of $100, the attachment shall be made returnable to the next term of the superior or county court of the county where the defendant resides, or where he last resided." The declaration in the present case does not show that the defendant was a nonresident or that he was a resident of the county where the attachment was returned, nor was the ground of attachment one that would lie only against a nonresident. Accordingly, the trial court erred in overruling the defendant's demurrer on this ground. Coney v. Horne, 93 Ga. 723 (3) ( 20 S.E. 213); Weatherly v. Southern Co-operative Foundry Co., 111 Ga. 826 ( 36 S.E. 659).
2. The defendant assigned error on the overruling of his objection to the allowance of an amendment proffered by the plaintiff, on the ground that, if the amendment were allowed, the petition would still not show the jurisdiction of the court over the person of the defendant. Any amendment which, if allowed, would not perfect the allegations as to jurisdiction should be rejected. Calhoun v. Edwards, 202 Ga. 95, 98 ( 42 S.E.2d 426), and cases cited. Accordingly, in view of the ruling in the first division of this opinion, the trial court erred in overruling the objection of the defendant to the allowance of the amendment.
3. The defendant filed his plea to the jurisdiction, in which he stated the county of his residence, and the proper court in which he could be sued, as provided by the Code, §§ 81-501, 81-502, and 81-503. The written motion of the plaintiff to strike the defendant's plea, which motion alleged that the plea was insufficient in law, was sustained after the oral motion of the plaintiff to strike the defendant's plea had been overruled. The defendant contends that the order overruling the plaintiff's oral motion was the law of the case, and that the trial court erred in later sustaining the written motion to strike such plea. The plaintiff in his brief argues that the oral motion to dismiss and the written motion to dismiss were one and the same motion, that the oral motion to dismiss was reduced to writing and then the trial judge sustained such motion. The bill of exceptions shows to the contrary, that in fact there was an oral motion to dismiss the plea to the jurisdiction, which was overruled, and then there was a written motion to dismiss the plea to the jurisdiction which was sustained. A motion to dismiss is in the nature of a general demurrer, and may be used at any time until final judgment, where there is no ruling upon the merits of a general demurrer. Kelly v. Strouse, 116 Ga. 872 (5a) ( 43 S.E. 280); Blount v. Radford, 16 Ga. App. 95 ( 84 S.E. 591). In view of the above, a motion to dismiss a named plea cannot be considered where there has been a previous ruling upon a motion to dismiss the same plea, which has not been vacated or reversed. It was said in Roles v. Edwards, 49 Ga. App. 527 ( 176 S.E. 106): "A judgment overruling a general demurrer to a petition, unless excepted to and reversed, is an adjudication that the petition sets forth a cause of action. . . It matters not, therefore, whether the ruling on the demurrer was right or wrong; it became the law of the case and is conclusive upon the parties thereto." Such a ruling on a general demurrer also applies to a ruling on a motion to dismiss, which of course is in the nature of a general demurrer. The ruling on the oral motion to dismiss became the law of the case, and it follows that the trial judge erred in sustaining the written motion to dismiss the defendant's plea to the jurisdiction after he had previously overruled a similar oral motion. Virginia Lumber Corp. v. Atlantic Coast Line R. Co., 46 Ga. App. 534, 536 ( 168 S.E. 323).
Judgment reversed. Felton, C. J., and Quillian, J., concur.