Cox v. Potts , 67 Ga. 521 ( 1881 )

Jacicson, Chief Justice.

The legal question made in this record is whether the answer by counsel and marking their names to the bench docket is equivalent to appearance and pleading, so as to give jurisdiction to the court of a county where the defendant does not reside, and when the only service upon him is that of leaving a copy of the declaration at his late residence, and placing it there in the hands of a man who is not even his agent, and when the counsel were not even specially employed to defend the case on the merits, but only to plead to the jurisdiction or throw it out, and where his counsel abandoned his case when he was in jail, notifying him only a week before trial, and he charged with murder.

The judge of the superior court, as judge and jury, held that these facts admitted jurisdiction. We cannot concur that such is either law or justice.

The controlling legal question is this : will the entry of “ answer” on the bench docket, and the marking the names of counsel for defendant there, be such evidence of appearance and pleading to the merits as to amount to a waiver of service and admission of jurisdiction as contemplated in sections 3335 and 3461 of the Code?

It is true that by the 3458th section of the Code, it is enacted that “ the general issue is a denial of the allegagations in plaintiff’s declaration, and shall be considered as filed in all cases which are answered to at the first termand it is true also, that this court has held that to the plea so presumed to be filed any amendment may be added by the defendant. But the question of jurisdiction is quite a different matter, and this court while not deciding the point, because it was unnecessary iti the case, has intimated very strongly that it is not such appearance and pleading as will work a waiver of process and service. 58 Ga., 417. This court in that case uses this language : “ It is true the judge had entered answer on the docket, and the Code declares in section 3458, that the general issue shall be considered as filed in all cases which are answered to at the first term. We hardly think this implied pleading is the sort contemplated in section 3335, as working waiver of process and service. We incline to the opinion that this section has in view something put on file, signed by defendants or their counsel, and destined to become of record with the other proceedings in the cause — something as full and formal as an ordinary acknowledgment of service.”

In that case the sheriff was the principal debtor and process was directed to him, and he served all the defendants, two sureties and himself. The court held the process void and the service no service, and allowed the sureties to make the point at the second term. All lived in the county, and the court had jurisdiction of subject matter and of persons, and process and service were attacked. More should be required in matter of jurisdiction where defendant lived out of the county and the court had no jurisdiction of him at all. No process of that court could reach him; no service could bind him. Yet he was held to be bound because counsel had their names marked for him, and the judge put answer on the bench docket.

Moreover, on the very next day the counsel moved to retract whatever significance might be attached to the act of having their names marked, and put that motion in writing and of file. It stated that the answer was made not to plead to the merits but to the jurisdiction, because their client lived in another county. Further, it appeared from the record itself that there was no legal service. The sheriff’s entry was that he served defendant by placing a copy “in the hands of H. V. Bayne at the former residence of defendant in Dekalb county.”

Section 3461 of the Code declares : “ If a defendant appear and plead to the merits, without pleading to the jurisdiction, and without excepting thereto, he thereby admits the jurisdiction of the court.” Section 3462 provides that where “ a want of jurisdiction appears on the face of the proceedings, it may be taken advantage of by motion.”

In this case the want of legal service, by the fact that the late residence of defendant had been in Dekalb and a stranger had been served with the copy of writ and process, appeared on the face of the proceedings ; and when it appeared, and the attention of the court was called to it, the case ought -to have gone out at once. There was no need to withdraw the entry. A plea to the jurisdiction could have been filed at any time during the term, notwithstanding the answer, and the motion to dismiss could have been made during the term, where the defect, as in this case, appeared on the writ.

Nay, in the case in the 58th Ga., it was allowed to be made at the second term. The fact is, whenever a court sees that it has no jurisdiction, it should wash its hands of the case, unless some act has been done to waive it. The motion to withdraw, though a singular mode of proceeding, amounted to an exception to the jurisdiction, and even if twenty pleas to the merits, all of record, had been filed at the first term, they would not have waived jurisdiction, if at the same term and time the jurisdiction had been excepted to. The language of section 3461 is, that “ if a defendant appear and plead to the merits without pleading to the jurisdiction and without excepting thereto, he thereby admits the jurisdiction.” See, he must not only plead to the merits, but decline to plead to the jurisdiction, and fail to except to it. But in this case, he did, by his counsel, except in writing, virtually by the motion to withdraw or explain his answer, and continued so to do by the paper remaining of' record before the eyes of court, though his counsel abandoned him, up to and at the time of the judgment.

We forbear to say more, except to add that he was abandoned because one of his counsel had been slain by him, and the other would not longer defend the slayer of his partner. Of this he was informed the week before trial term, and he in jail charged with the murder! Who could be expected to attend to sucha case under such circumstances, and on notice- so short, and employ other counsel ?

Judgment reversed.

Cited for plaintiff in error: Code, §§3461, 3594, 3335 3458; 56 Ga., 51; 58 Ib., 412.

For defendant: Code, §§3458, 3335, 3753 ; 33 Ga., 243 ; 36 Ib., 108.