Opinion
36621.
DECIDED APRIL 2, 1957. REHEARING DENIED APRIL 19, 1957.
Tort; truck and station wagon collision. Before Judge Foster. Polk Superior Court. August 20, 1956.
Henry A. Stewart, Sr., Nall, Sterne, Miller, Cadenhead Dennis, for plaintiff in error. Arnold Gambrell, Forrest C. Oates, Jr., A. Walton Nall, contra.
1. Want of jurisdiction when it appears on the face of the petition should be taken advantage of by demurrer, and in all cases demurrers, pleas and answers are to be disposed of in the order named.
2. Code § 68-514 confers residence in any county of this State in which a cause of action may arise upon a nonresident corporate motor contract carrier for purpose of suit so as to permit the joining in the same suit of another defendant resident of another county of this State.
3. A defendant in such a case may not in a bill of exceptions in which he assigns error upon the trial court's overruling of his demurrer to the plaintiff's petition also properly assign error upon the trial court's overruling of his plea to the jurisdiction. Such an assignment of error can only be made after trial and a final determination of the cause.
DECIDED APRIL 2, 1957 — REHEARING DENIED APRIL 19, 1957.
This case and two companion cases were originally appealed to this court, which was of the opinion that a constitutional question was involved and transferred the cases to the Supreme Court. The Supreme Court decided that a constitutional question was not properly presented and returned the cases to the Court of Appeals. See Pate v. Brock, 212 Ga. 812 ( 96 S.E.2d 253), Pate v. Green, 212 Ga. 813 ( 96 S.E.2d 255), and Pate v. Mitchell, 212 Ga. 813 ( 96 S.E.2d 255). Mrs. Lois Brock filed suit in Superior Court of Polk County against Complete Auto Transit, Inc., and James S. Pate, as defendants. The suit was for the value of the life of the plaintiff's husband and for certain other specified damages. The corporate defendant filed its answer, and the defendant Pate demurred to the petition on one ground, among others, that the court lacked jurisdiction of his person. Pate also filed a plea to the jurisdiction.
It is alleged that the corporate defendant is a foreign corporation, organized and existing under the laws of the State of Michigan, with an office, agent, and place of doing business, in Atlanta, Fulton County, Georgia, and that Pate is a resident of Fulton County, Georgia. It is further alleged that the corporate defendant is a motor contract carrier operating under a certificate from the Public Service Commission of Georgia, granting it permission to operate in this State, and that it was so operating on February 6, 1956. It is alleged that the corporate defendant has appointed as its agent for service, D. F. McClatchey, 1045 Hurt Building, Atlanta, Fulton County, Georgia, and the corporate defendant can be served by second original on such agent. It is also alleged that Pate may be served at his residence in Fulton County, Georgia, by second original served upon him at his residence at 48 Chattahoochee Avenue, N.W., Atlanta. It is further alleged that Pate was operating a tractor trailer as agent for the corporate defendant on February 6, 1956, in Polk County, Georgia, when it collided with a Mercury station wagon being operated at the time by Jones Edward Green, and that the plaintiff's husband was riding as a guest in the station wagon at the time of the collision, which resulted in the death of the plaintiff's husband. It is alleged that the sole proximate cause of the collision and the death of the plaintiff's husband was the negligence of Pate, agent of the corporate defendant, and suit is brought jointly and severally against the defendants.
In the bill of exceptions before this court, error is assigned on the court's refusal to consider Pate's plea to the jurisdiction prior to its ruling upon his demurrers. Error is assigned, also, upon the overruling of Pate's demurrer to the petition on the ground that the court was without jurisdiction of Pate's person, and on the overruling of Pate's plea to the jurisdiction.
1. The court did not err in passing upon the demurrer to the petition prior to hearing and determining the plea to the jurisdiction. "Want of jurisdiction when it appears on the face of the petition, should be taken advantage of by demurrer." Albany Coca-Cola Bottling Co. v. Shiver, 67 Ga. App. 359 (2) ( 20 S.E.2d 181). "In all cases demurrer, pleas, and answer shall be disposed of in the order named." Code (Ann.) § 81-1002. See Gamble v. Gamble, 204 Ga. 82, 89 (2) ( 48 S.E.2d 540).
2. The court did not err in overruling Pate's demurrer to the petition on the ground that the court did not have jurisdiction of his person. Code § 68-514 provides: "Action may be maintained against any corporation operation under this chapter in any county in this State where any accident or other liability arises; and, where there is no agent of such corporation against whom suit is brought in the county where the right of action arises, service in such case may be perfected by serving the party defendant and/or an agent thereof with a second original where such defendant and/or an agent thereof may be located." This statute confers a qualified residence upon the nonresident motor contract carrier for purposes of suit such that a resident joint tortfeasor may be joined in an action against it in the county where the injury occurred although the joint tortfeasor is a nonresident of such county, and although the defendant corporation has no office or place of doing business therein, and this construction of the statute is necessitated because of the construction placed on similar venue statutes by both the Supreme Court and this court. See Southern Ry. Co. v. Grizzle, 124 Ga. 735 ( 53 S.E. 244, 110 Am. St. R. 191); Boone Company v. Owens, 51 Ga. App. 739 ( 181 S.E.2d 519); Atlanta-Asheville Motor Express v. Dooley, 78 Ga. App. 265 ( 50 S.E.2d 822). If anything to the contrary is held in Hays v. Jones, 81 Ga. App. 597 ( 59 S.E.2d 404), it is not controlling in this case as against the old decisions of this court. While the statute construed in the Grizzle case, supra, is mandatory, whereas the statutes involved in the other cases are permissive in so far as the right to sue in the county where the injury occurred is concerned, the decision reached in the Grizzle case does not appear to have been pitched upon this distinction, but the Supreme Court in the Grizzle case definitely held that such a statute does confer residence upon a nonresident corporation for purpose of suit so as to permit the joining in the same suit of another defendant resident of another county of this State.
3. While a defendant in an action may, before its final termination, bring to this court for review a decision overruling a demurrer to the plaintiff's petition because the "judgment complained of, if it had been rendered as claimed by the plaintiff in error, would have been a final disposition of the cause," such defendant cannot in a bill of exceptions sued out in such a case, properly assign error also upon a decision of the trial court overruling his plea to the jurisdiction. See in this connection Turner v. Camp, 110 Ga. 631 (2) ( 36 S.E. 76); Wright v. Morris, 50 Ga. App. 196 (3) ( 177 S.E. 365); Clay v. Merchants Mutual Credit Corp., 86 Ga. App. 832 ( 72 S.E.2d 833). We, consequently, do not entertain the assignment of error made in the bill of exceptions on the overruling of the plea to the jurisdiction.
Judgment affirmed. Townsend and Carlisle, JJ., concur.