CANAL INSURANCE COMPANY v. CAMBRON et al.; and vice versa., 240 Ga. 708, 242 S.E.2.d 32 (1977)
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Judgments attacked in the main appeal reversed; cross appeal affirmed. All the Justices concur.
Summary
Judgments attacked in the main appeal reversed; cross appeal affirmed. All the Justices concur.
Text
Hurt, Richardson, Garner, Todd & Cadenhead, T. Cullen Gilliland, Robert B. Wedge, for appellant.
Canal Insurance Company filed a suit in equity in Polk Superior Court seeking to set aside certain judgments against its former insured, Glover. This appeal is brought by Canal from adverse judgments which dismissed its complaint as to each defendant; granted each defendant summary judgment; denied Canal's motion for summary judgment; and dismissed Canal's complaint against Evelyn Hilton for additional jurisdictional reasons. There is a cross appeal.
Canal's insured was Glover, a taxi driver who was sued by his passengers, Mr. and Mrs. Hilton, following a serious automobile collision. Mr. Hilton later died of his injuries as did Glover. (For convenience, the suit instituted in his name will be referred to as Mr. Hilton's suit). Canal began defense of the Hiltons' suits against Glover, but later decided the relevant policy had been canceled by Canal prior to the collision. Canal withdrew from the defense, and one Cambron, the deputy clerk of Polk County Superior Court, was appointed Glover's administrator on the day of trial. Marson G. Dunaway, Jr., an attorney, represented Cambron as administrator of Glover's estate, and he was also counsel of record for the Hiltons in their suit against Glover. Cambron adopted the defensive pleadings filed by Canal and announced ready for trial; but when the case was called for trial he did not appear himself nor through counsel, and the Hiltons took default judgments. After hearing a minimal amount of evidence concerning damages, which was insufficient to prove the amounts sued for, namely $250,000 for Mr. Hilton and $100,000 for Mrs. Hilton, the court directed the jury to enter verdicts for the Hiltons in the amounts sued for, and this was done.
Cambron then sued Canal to recover under the policy. Canal removed the suit to federal court, and in Polk Superior Court filed its own suit in equity under Code Ann. 81A-160 seeking to set aside the Hiltons' judgments against Glover. The federal court stayed its decision pending decision of Canal's suit. The Polk Superior Court ruled against Canal, granting on all grounds the defendants' motions to dismiss its suit in equity, and defendants' motions for summary judgment. There was a counterclaim brought by defendants Cambron, Dunaway and Evelyn Hilton against Canal, alleging abuse of process in claiming fraud without basis. The trial court denied the counterclaim and this judgment is the basis of the cross appeal.
1. For clarity, some hotly contested initial matters must be decided. Contrary to defendants' (Cambron and the Hiltons) argument here, Canal has not brought a collateral attack on these judgments. A suit in equity is a direct attack under Code Ann. 81A-160 (b). Lewis v. Lewis,
Therefore, the fact that Canal was not a party to the judgments it seeks to attack does not prevent its bringing this action.
2. The attack is brought on the ground of fraud among others, and defendants assert that the complaint is subject to dismissal because the allegations of fraud are not adequately particularized. The defendants' position overlooks Bryant v. Bryant,
What has been written is sufficient to show that Canal is entitled to its day in court seeking to prove the allegations of its complaint. Defendants in their motion for summary judgment failed to show that they were entitled to judgment as a matter of law and that there were no material fact issues remaining for decision. Code Ann. 81A-156 (c). If Canal succeeds below, the entire judgments including liability and damages may fall. But Canal may not succeed on its fraud theory, requiring that we consider its independent attack on the damages portion of the Polk County judgments.
3. Canal attacks the award of damages totalling $350,000 on the ground that the trial judge's directing the jury to return verdicts in that amount exceeded the power of the court because the amount of damages is for the jury to determine. Again, Canal need not show that the alleged unauthorized act is visible "on the face of the record" subjecting it to collateral attack, in order to attack the judgment. This is a direct attack brought under Code Ann. 81A-160 (e). Although the language of that section mentions only the following situations, "Complaint in equity may be brought to set aside a judgment for fraud, accident or mistake, or the acts of the adverse party unmixed with the negligence or fault of the complainant," equity has the power to afford relief on more grounds than those mentioned. In Kitchens v. Clay,
We construe Code Ann. 110-709 to give a remedy under Code Ann. 81A-160 (e) to third parties who attack a judgment as void for any cause. Accord, Restatement, Judgments, 117 and Comment c (1942). Anything to the contrary in Thomas v. Lambert,
Defendants argue that the State Court of Polk County was empowered by the Act creating it to act without a jury absent a demand for a jury trial (which was not made). Ga. L. 1901, 156 at 159. Defendants cite numerous old decisions. However, "where a provision of a special Act establishing a court of record conflicts with a provision of the Civil Practice Act, the latter controls. [Cits.]" Pittman v. McKinney,
It follows that the unauthorized act of the State Court of Polk County in directing the jury to enter certain damage verdicts renders the judgments entered thereon void.
4. We come now to the contention that the federal court's action is res judicata on certain issues in this litigation. It is not necessary for us to construe the full scope of the federal court's orders including that staying its action pending the outcome of Canal's Polk County attacks on the judgments, of which the instant appeal is a part. It is plain from our reading of the orders that no issues discussed herein may reasonably be said to be res judicata.
5. What has been written allows Canal to proceed with its attack in equity on the judgments, and invalidates the damage amounts awarded by directed verdict. It therefore becomes unnecessary for us to consider Canal's additional argument that F. L. Hagen, administrator of Wesley Hilton's estate, was never properly made a party.
6. Mrs. Evelyn Hilton moved the trial court to dismiss the complaint as to her on the double ground that she was, at and since the time of the filing of the complaint, a resident of the State of South Carolina and was not properly served there, and that she was served after the statute of limitation on Canal's cause of action had run, meaning that Canal had failed to state a claim against her.
Under Code Ann. 81A-104 (e) (2) Mrs. Hilton was subject to personal service outside Georgia in this action which is in the nature of an in rem [2] action affecting property rights flowing from a judgment. The return of service shows she was personally served by the deputy sheriff of Anderson County, South Carolina, and the service does not appear improper for any reason asserted.
Under 81A-160 (f) there was a three-year limitation period on Canal's bringing a suit in equity to attack the judgments. Suit was filed January 6, 1977, one day before the statute ran, but service on Mrs. Hilton was not perfected until July 19, 1977. Canal contends that its diligence during the interim period in attempting to locate Mrs. Hilton, who had moved to South Carolina but apparently maintained no fixed address, should enable service to relate back to the time of filing the complaint, under Cox v. Strickland,
Mrs. Hilton had been represented by Mars on Dunaway since the initiation of the Polk State Court suits, and continues to be represented by him now. Dunaway was himself made a defendant in Canal's action and had timely notice of the suit. He refused Canal's request that he accept service for Mrs. Hilton. He was asked by interrogatory and by personal contact to provide an address from Mrs. Hilton so that she might be served, and either he could not or he would not do so. Finally his secretary (perhaps on his instruction) provided an address and service was perfected soon thereafter on Mrs. Hilton, who was residing at the home of a third party. These facts show adequate diligence on Canal's part in attempting to
view in the United States: "Most courts regard such judgment as a res within the state, and the proceeding to set it aside as a proceeding in rem, and uphold the judgment setting aside or vacating the previous judgment, although no personal service within the state is made upon the defendant and although the service upon him was by publication or personally beyond the jurisdiction of the court." Annot., Process -- Action to Set Aside Judgment, 163 ALR 504, 505 (1946).
make service, and we see nothing indicating that Mrs. Hilton has been prejudiced in any way by the delay. Service on her relates back to the filing of the complaint so that Canal's action is not barred as to Mrs. Hilton. The superior court erred in dismissing the complaint as to her.
7. Considering the counterclaims which are the subject of the cross appeal, the trial court did not err in granting Canal's motion to dismiss them. Simpson v. Jones,
Duffey & Sawhill, Harl C. Duffey, Jr., Marson G. Dunaway, Jr., for appellees.
1977
Notes:
1. " 'The general rule as to the effect of judgments is, that they are conclusive upon parties and privies . . .
2. Our conclusion that an action to set aside a judgment is an action in rem or quasi in rem follows from the nature of a judgment as property within the state. A right to recover at law is a chose in action. Code 85-1802. A dormant judgment is a chose in action. Armstrong v. Harper,
Our analysis appears to accord with the majority
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This document cites
- Supreme Court of Georgia - MARLER v. C & S BANK OF MILLEDGEVILLE., 239 Ga. 342, 236 S.E.2.d 590 (1977)
- Supreme Court of Georgia - BRYANT v. BRYANT., 236 Ga. 265, 223 S.E.2.d 662
- Supreme Court of Georgia - WASDEN v. RUSCO INDUSTRIES, INC. et al., 233 Ga. 439, 211 S.E.2.d 733 (1974)
- Supreme Court of Georgia - LEWIS v. LEWIS et al., 228 Ga. 703, 187 S.E.2.d 872 (1972)
- Supreme Court of Georgia - KITCHENS v. CLAY., 224 Ga. 325, 161 S.E.2.d 828
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