Opinion
41338.
ARGUED JUNE 9, 1965.
DECIDED JUNE 22, 1965.
Action for damages. Fulton Superior Court. Before Judge McKenzie.
Nall, Miller, Cadenhead Dennis, Thomas A. Rice, for plaintiff in error.
George G. Finch, John H. Crutchfield, contra.
In an action brought by a resident of Georgia against a resident of Georgia and a Florida corporation jointly, the nonresident defendant can challenge the fact of service on the resident defendant by a traverse to the sheriff's return of service alleging that the resident defendant has not in fact been served with process and, upon showing this fact, the nonresident defendant will have the right to remove the case to Federal court because of diversity of citizenship between it and the plaintiff.
ARGUED JUNE 9, 1965 — DECIDED JUNE 22, 1965.
In this negligence action the plaintiff sued an automobile leasing company (hereinafter called Ryder), the lessee of an automobile, and the driver of the leased automobile (hereinafter called Duncan), allegedly an employee of the lessee. The return of service dated June 17, 1963, stated that the defendant Duncan had been served by leaving a copy of the writ and process at his most notorious place of abode in the county. Ryder filed a traverse to the entry of service on Duncan, alleging that Duncan did not reside at the place stated in the return at the time of the purported service and had never been served, had no notice of the suit, and had not appeared therein. The traverse alleged that, since only Ryder had been served with process (the sheriff's return showed that service had not been perfected on the lessee), it would, upon showing that Duncan had not been served, have the right to remove the case to Federal court because of diversity of citizenship between it and the plaintiff.
The plaintiff filed a motion to strike the traverse on the ground that it was brought not by the defendant Duncan but by a co-defendant. The trial court sustained this ground of the motion to strike and dismissed the traverse. The defendant Ryder assigns error on this judgment.
A civil action of which the United States district courts have original jurisdiction because of diversity of citizenship of the parties "shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought." 62 Stat. 937, 28 U.S.C.A. § 1441 (b).
The right of a nonresident defendant under this statute to remove when there is a resident co-defendant who has not been served has not been directly decided. If the plaintiff voluntarily dismisses, discontinues, or in any way abandons the action as to a resident sued jointly with a nonresident, the cause then may be removed by the nonresident defendant. Stamm v. American Tel. Tel. Co., 129 F. Supp. 719, (W.D. Mo. 1955); Lewis v. Producers Coop. Oil Mill, 205 F. Supp. 293, 295 (W.D. Mo. 1962); Beglane v. Switzer, 209 F. Supp. 849 (W.D. Mo. 1962); Cuyler v. Smith, 78 Ga. 662 ( 3 S.E. 408); Rich's, Inc. v. Andrews, 66 Ga. App. 187, 189 ( 17 S.E.2d 588); 85 ALR 799. In the Stamm case, supra, the district court decided that the plaintiff had not abandoned the action against a resident defendant who had not been served with process at the time the action was removed to Federal court, but stated in the opinion that, if the plaintiff proceeded to trial without the resident defendant, that action would constitute a voluntary discontinuance of the action against the resident defendant "which would then undoubtedly render the case removable." The reasoning of the Stamm case is that the nonresident defendant has a right to remove the action to the Federal court when the record at the time the petition for removal is filed shows that the resident defendant has not been served and the plaintiff is willing to proceed to trial against the nonresident alone. But the nonresident defendant's petition for removal will be fatally defective unless it shows that the resident defendant has not been served. Gratz v. Murchison, 130 F. Supp. 709 (D. Del. 1955).
In the present case the record shows, by the sheriff's return of service, that the resident defendant has been served. The sheriff's entry of service is conclusive of the fact of service unless traversed. Benton v. Maddox, 56 Ga. App. 132 ( 192 S.E. 316).
"As a general rule, the question of defective service may be raised only by the one on whom attempted service was made, and one defendant is not entitled to urge defects in the service on a co-defendant." 72 CJS 1151, § 106; Tennessee Chemical Co. v. Harper, 30 Ga. App. 789, 792-793 ( 119 S.E. 448). The same principle is applicable as to objections to venue. Murray v. Miller, 157 Ga. 11, 14 ( 121 S.E. 113); 92 CJS 771, § 71. There are exceptions, however, where strict adherence to the rule would deprive the movant of a right under the law. For example, while joint tortfeasors residing in different counties of this State may be sued in the county of residence of either ( Code Ann. § 2-4904), the cause of action must be alleged and proved against the resident defendant, and the nonresident defendant has standing to raise these questions. Richards Associates v. Studstill, 212 Ga. 375 (2) ( 93 S.E.2d 3); Lewis v. Wilson, 111 Ga. App. 666 ( 142 S.E.2d 852); Harris Foundation v. District Ct., 196 Okla. 222 ( 163 P.2d 976, 162 ALR 272); 42 Am.Jur. (Supp). 20, § 115. We are of the opinion that since a nonresident defendant may object to defective service of process on the resident co-defendant in order to protect his right to proper venue, he may raise the same objection in order to protect his federal right of removal. Wuchter v. Pizzutti, 276 U.S. 13 ( 48 SC 259, 72 LE 446); 3 Davis, Administrative Law Treatise 229, § 2206.
In the present case there is no way for the nonresident to establish the fact that there has been no service on the resident defendant except by traversing the return of service. If the resident defendant has not been served, the adjudication of the traverse of service is essential to make the record show this fact and thereby show the nonresident defendant's right of removal. Benton v. Maddox, 56 Ga. App. 132, supra; Gratz v. Murchison, 130 F. Supp. 709, supra.
Therefore the trial court erred in sustaining the plaintiff's motion to strike and dismissing the defendant's traverse of service.
Judgment reversed. Bell, P. J., and Frankum, J., concur.