Opinion
16862.
JANUARY 10, 1950. REHEARING DENIED JANUARY 18, 1950.
Cancellation, etc. Before Judge Gower. Crisp Superior Court. August 4, 1949.
Davis Friedin, for plaintiff in error.
Benjamin Zeesman and George M. Mixon, contra.
Where, upon the trial of a suit in equity against three defendants, two of whom reside in the county where the suit is brought and one is a non-resident of that county, the verdict is in favor of the resident defendants and against the non-resident defendant only, and a motion in arrest of judgment made by the non-resident defendant is sustained, the court is without jurisdiction to proceed further in the case. It is proper to enter an order dismissing the same upon the ground that the court is without jurisdiction.
NO. 16862. JANUARY 10, 1950. REHEARING DENIED JANUARY 18, 1950.
On a former appearance in the Supreme Court ( Ryner v. Duke, 205 Ga. 280, 53 S.E.2d 362), it was held that the trial court erred in overruling a motion in arrest of judgment; that motion being based upon the ground that the suit was brought against the movant who was a non-resident of the county and two named defendants who were residents of the county where the suit was brought, and upon the trial a verdict was returned for the two resident defendants and against the non-resident defendant, this court holding that the verdict thus establishing the non-liability of the resident defendants at the same time deprived the court of jurisdiction of the non-resident defendant.
The remittitur from the Supreme Court was by proper order made the judgment of the trial court. The non-resident defendant filed a voluminous motion reciting these facts and praying that the original judgment against him be modified to make it conform to the judgment of the Supreme Court. In passing upon that motion, the trial judge, in his judgment, set forth a portion of the verdict of the jury, and held that it was inconsistent. He recited that, after a consideration of the pleadings, the evidence, the charge, the inconsistent provisions of the verdict, and the decision of the Supreme Court setting aside the judgment as to the non-resident Ryner, the motion be denied; that the decision of the Supreme Court is construed to render void the entire proceedings; that the verdict and judgment therein are declared void; and that both the verdict and judgment are set aside, and a new trial of the entire proceedings is ordered. The exception here is to that judgment.
A judgment may be arrested only for defects not amendable, appearing on the face of the record. Code, § 110-702. If a judgment can be arrested it is always void. Chapman v. Taliaferro, 1 Ga. App. 235, 238 ( 58 S.E. 128). Our former decision ( Ryner v. Duke, 205 Ga. 280), shows that the trial court was deprived of jurisdiction after the verdict of the jury had conclusively eliminated both of the resident defendants. Since neither of those defendants nor the petitioner has excepted to that verdict, it has become the law of the case, and all parties are bound thereby. In our previous opinion it was said: "It has frequently been held that where a non-resident is sued jointly with a resident in the county of the latter's residence, and on the trial the proof shows that the plaintiff is not entitled to recover against the resident defendant, the court, in that suit, can grant no relief against the non-resident defendant. Fowler v. Southern Airlines, Inc., 192 Ga. 845, 851 ( 16 S.E.2d 897), and cit."
While there would seem to be no legal basis upon which the motion by Ryner in the present case could be made or sustained, since by the record in the case it had become legally impossible for any judgment against him to be rendered therein — and for this reason the court would have been authorized to deny the motion — yet the judgment now under review went beyond that motion and, in the absence of any motion for a new trial, ordered a new trial of the entire proceedings. In thus ordering a new trial regardless of the circumstances of the record, the trial court erred.
In ordering a new trial, the trial court impinged upon the fixed rights of the resident defendants. It undertook also to adjudge that the court had jurisdiction of the non-resident defendant Ryner. Under the law it could not do this, and the judgment must be reversed, since the record shows that the court is wholly without jurisdiction of the only remaining defendant.
Since it appears that there has been some difficulty in understanding the legal significance of an arrest of a judgment, and in order to avoid further confusion, it is directed that judgment be entered dismissing the proceedings upon the ground that the court is without jurisdiction.
Judgment reversed with direction. All the Justices concur.