Maxwell v. Columbia Realty Venture , 155 Ga. App. 289 ( 1980 )

McMurray, Presiding Judge.

This case involves an action to domesticate a judgment of a Maryland court against the defendant, a resident of Columbus, Muscogee County, Georgia. Attached to the pleadings were the duly certified copies of the docket and entries of judgment of the trial court in Maryland. Service as to the Maryland case was not obtained upon this defendant by the usual manner, but the summons, in triplicate and with a copy of the pleadings, was sent to the plaintiffs’ attorney for service upon the defendant, which service, as shown by the affidavit of service of counsel, was obtained by certified mail endorsed “Restricted Delivery Return Receipt Requested.” The affidavit had attached to it a receipt for certified mail allegedly signed by the defendant at his Georgia address. The affiant deposes that this document shows same was “in fact received by the Defendant, Stephen M. Maxwell, as evidenced by his signature on the original return receipt which is attached to this affidavit.”

Thereafter, summary judgment by the Maryland court, based upon the affidavit in support thereof (we assume this refers to the affidavit of service) “and there being no opposition,” was granted upon motion of the plaintiffs.

Requests for admissions were filed with the domestication petition (at the same time) requesting that this defendant admit he was served by certified mail, and was “properly served with process in this matter,” and that he admit the indebtedness due.

The petition to domesticate was duly served by a deputy sheriff of Muscogee County, and the defendant answered, denying the claim, admitting only jurisdiction. Defendant also pleaded that the petition failed to state a claim, the judgment upon which plaintiffs base their claim was null and void in that he was a nonresident of the State of Maryland and “never submitted himself to the jurisdiction of the Maryland court by waiver of [or] otherwise,” and the Maryland judgment was not entitled to full faith and credit in that the Maryland court never obtained jurisdiction over him. The defendant separately answered the requests for admissions by denying receipt of the certified mail, denying that he had been properly served with process in the matter and denied that he was indebted in any amount to the plaintiffs.

Plaintiffs then moved for summary judgment based upon the record before the court. The motion was granted, the court reciting that the defendant was present and “presented no counter affidavit or exhibits.” Defendant appeals. Held:

1. A collateral attack upon a petition to domesticate a foreign (sister state — rather than a non-domestic) judgment that it was based on lack of personal jurisdiction is precluded in this state only if the defendant has appeared in the foreign court and has thus had an opportunity to litigate the issue. See Drake v. Drake, 187 Ga. 423 (5), 430 (1 SE2d 573); Connell v. Connell, 119 Ga. App. 485, 487 (2) (167 SE2d 686); Berry v. Jeff Hunt Machinery Co., 148 Ga. App. 35 (250 SE2d 813); Capital Bank of Miami, N. A. v. Levy, 151 Ga. App. 819, 821 (2) (261 SE2d 722); Greenfield v. Chronicle Printing Co., 107 Ga. App. 442 (130 SE2d 526); Collins v. Peacock, 147 Ga. App. 424, 426 (2) (249 SE2d 142); Gordon v. Gordon, 237 Ga. 171 (1) (227 SE2d 53); Green Acres Discount v. Freid & Appell, 135 Ga. App. 816, 817-818 (219 SE2d 39); Ramsey Winch Company v. Trust Company Bank, 153 Ga. App. 500 (1) (265 SE2d 848) (1980); Borg-Warner Health Products, Inc. v. May, 154 Ga. App. 482 (1) (1980).

2. The plaintiffs, however, contend that by introducing a properly authenticated copy of a sister state judgment, which was attached to the petition, they made out a prima facie case, citing Minor v. Lillie Rubin, Inc., 84 Ga. App. 112, 113 (65 SE2d 691). See also Melnick v. Bank of Highwood, 151 Ga. App. 261 (259 SE2d 667); Conner v. Conner, 140 Ga. App. 520 (231 SE2d 512). Melnick v. Bank of Highwood, 151 Ga. App. 261, supra, involved a confession of judgment in a promissory note case. Conner v. Conner, 140 Ga. App. 520, 521, supra, also cited by the plaintiffs, recites the law that the jurisdiction of a court of general jurisdiction is presumed, and its judgment cannot be collaterally attacked where no want of jurisdiction is apparent of record. See Albert v. Albert, 86 Ga. App. 560, 561 (71 SE2d 904); Peeples v. Peeples, 103 Ga. App. 462, 468 (119 SE2d 710). The Conner case involved a Kentucky judgment for alimony arrearages and no want of jurisdiction was apparent of record. The Albert case likewise involved a decree of divorce and for support and maintenance of minor children in which the support was reduced to a lump sum by reason of an Ohio judgment “served by publication” and mailing the defendant a copy of the published notice and of the petition. The case of Peeples v. Peeples, 103 Ga. App. 462, 468, supra, was rendered on the plaintiff’s claim for alimony with reference to a contempt of court citation after the issuance of a rule nisi which was served by certified mail with a copy of the petition and a rule to show cause. The case sub judice does not involve domestic relations or alimony and child support but involves a suit for debt against a partnership in which this nonresident was served by allegedly mailing him a copy of the pleadings in the State of Georgia. The only judgment obtained was against the nonresident as to this action involving a partnership debt.

3. Further, in Melnick v. Bank of Highwood, 151 Ga. App. 261, 262, supra, involving the issue of a confession of judgment clause in a note which was involved in a judgment obtained in a foreign state, this court held that where “an attorney appeared for the defendant, and personal service was obtained upon the nonresident defendant in Georgia” that judgment was not contrary to the policy or laws of this state and was entitled to full faith and credit.

However, in the case sub judice, the defendant does not admit any personal service was obtained upon him in Georgia but, on the contrary, disputes this issue both in his answer to the suit and in his answer to the requests for admissions. The duly authenticated and certified copy of the foreign sister state judgment shows service was obtained by certified mail which the defendant denies. Under the circumstances, an issue of fact remains as to whether there was personal jurisdiction in accordance with the law of the sister state upon the defendant. Hence, his pleadings have not been pierced even though he did not present counter-affidavits to the record which only contained the original pleadings of the plaintiffs. The law of Georgia as to service would apply in the absence of any proof of the Maryland statute. See Code Ann. § 24-115 (Ga. L. 1966, pp. 343, 344); Berry v. Jeff Hunt Machinery Co., 148 Ga. App. 35 (1,2), 36, supra. As the case stood when it was considered on summary judgment in the trial court it was not based upon any additional evidence to overcome defendant’s pleadings in response to those of the plaintiffs and even though the duly authenticated and certified copy of the foreign judgment and proceedings were attached to the pleadings, tbe defendant’s answer has not been pierced, if, in fact, personal jurisdiction could be obtained against the Georgia resident by the Maryland court by merely serving him by certified mail. Defendant has denied that he was served by receiving the certified mail from plaintiffs’ counsel. At this time we do not decide the question of whether or not the service by certified mail would be sufficient to give the foreign court personal jurisdiction of the defendant in this case which appears to arise out of a partnership doing business in the State of Maryland. Under our Long Arm Statute a person subject to the jurisdiction of the courts of this state “may be served with a summons without the State, in the same manner as service is made within the State, by any person authorized to make service by the laws of the State,... in which service is made or by any duly qualified attorney, solicitor, barrister or equivalent in such jurisdiction.” See Code Ann. § 24-115, supra.

Submitted April 16, 1980 Decided July 14, 1980. William J. Wright, for appellant. Kirk W. Keene, for appellees.

Since the primary purpose of summary judgment procedure is to allow the party (plaintiffs in this instance) to pierce the allegations of the pleadings and show the truth to the court and receive judgment where there is no genuine issue as to any material fact, although the issue may be raised by pleadings, until such time that a judgment is demanded, the defendant is not required to produce any evidence. As issues of material fact remain here with reference to jurisdiction of the foreign court over the nonresident Georgia defendant, the trial court erred in granting summary judgment. See Benefield v. Malone, 110 Ga. App. 607, 610 (139 SE2d 500); Durrett v. Tunno, 113 Ga. App. 839, 842 (2) (149 SE2d 826); Watkins v. Nationwide Mutual Fire Ins. Co., 113 Ga. App. 801, 802 (149 SE2d 749). The collateral attack upon the service has not been overcome.

Judgment reversed.

Deen, C. J., Quillian, P. J., Shulman, Banke, Birdsong, CarleyandSognier, JJ., concur. Smith, J., dissents.