First Fidelity Insurance v. Busbia

197 S.E.2d 396, 128 Ga. App. 485, 1973 Ga. App. LEXIS 1528

• Court: Court of Appeals of Georgia
• Decided: February 21, 1973
• Docket: 47579
• Status: Published

Opinions

Bell, Chief Judge.

The plaintiff sought recovery against an insurer on a prior judgment that plaintiff had obtained against third parties allegedly insured under an automobile liability policy. The record of the prior case, tried in a superior court, was admitted in evidence. It revealed that the defendants defaulted; that as the action was ex delicto, a jury of eleven persons was impaneled which awarded plaintiff $10,000 in damages; and that a judgment for that amount was entered. No written stipulation is contained in the record of the prior case that the jury would be composed of less than twelve members. Held:

Defendant contends that the prior judgment was void and that the trial court erred in the denial of its motion for directed verdict and for judgment notwithstanding the verdict. We agree. Where a party is in default in an action ex delicto the plaintiff is required to introduce evidence and establish the amount of his damages "before a jury” before a judgment by default may be entered. CPA § 55 (Code Ann. § 81A-155 (a)). Section 47 (a) of the Civil Practice Act further provides: "Jurors, (a) Juries of less than twelve. The parties may by written stipulation, filed of record, stipulate that the jury shall consist of any number less than that fixed by statute.” Code Ann. § 81A-147 (a). In Greene v. Greene, 76 Ga. App. 225 (45 SE2d 713) it was held that under then existing Code § 110-401, a judgment by default entered in the superior court in an action on a claim for unliquidated damages, by a judge without a jury trial, was void, as a jury verdict as to the damages was required by that statute. Under our existing statute a valid default judgment cannot be entered in an ex delicto action unless the plaintiff has introduced evidence and established the amount of his damages "before a jury.” It is clear under our Constitution and statutes that a jury in the superior courts must be composed of twelve members. Code Ann. § 2-5101; Code § 59-703; and CPA § 47 (a), supra. Since there was no stipulation that the jury would consist of less than twelve, it follows that there was no trial "before a jury” as required by the default judgment statute. It follows that the earlier judgment was void. "A lack of jurisdiction or power in a court entering a judgment always avoids the judgment, and this is especially true as it relates to and affects the rights of other parties; such action is a mere usurpation of power by the court and may be declared void collaterally without any direct proceedings to revise it.” Royal Indemnity Co. v. Mayor &c. of Savannah, 209 Ga. 383, 391 (73 SE2d 205). A judgment void on its face may be attacked in any court by any person. CPA § 60 (a) (Code Ann. § 81A-160 (a)). A judgment which is void for any cause is a mere nullity and may be so held in any court when it is material to the interest of the parties to consider it. Code § 110-709; Nuckolls v. Merritt, 216 Ga. 35 (114 SE2d 427). Thus it was error for the trial court to deny the defendant’s motion for directed verdict and for judgment notwithstanding the verdict on this ground. The judgment is reversed with direction that judgment be entered for defendant.

Argued October 2, 1972 Decided February 21, 1973 Rehearing denied March 14, 1973 Fulcher, Hagler, Harper & Reed, J. Walker Harper, for appellant.

Judgment reversed with direction.

Eberhardt, P. J., Quillian, Clark and Stolz, JJ., concur. Hall, P. J., Pannell, Been and Evans, JJ., dissent. Franklin H. Pierce, Hinton R. Pierce, for appellee.