Thrift v. Vi-Vin Products, Inc.

Supreme Court of Georgia

Thrift v. Vi-Vin Products, Inc.

209 S.E.2d 174, 232 Ga. 828, 1974 Ga. LEXIS 1099

CourtSupreme Court of Georgia

DecidedSeptember 24, 1974

Docket29079

StatusPublished

Cited by1 cases

This text of 209 S.E.2d 174 (Thrift v. Vi-Vin Products, Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Thrift v. Vi-Vin Products, Inc., 209 S.E.2d 174, 232 Ga. 828, 1974 Ga. LEXIS 1099 (Ga. 1974).

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Opinion

Nichols, Presiding Justice.

The plaintiff in the trial court sued the defendant, [829]*829an alleged nonresident defendant, upon an account. Jurisdiction over the defendant was alleged to be in the trial court because the defendant had conducted business within DeKalb County, Georgia. A default judgment was entered in November, 1972. In January, 1974, a motion to set aside such default judgment was filed by the defendant and in May, 1974, after the enactment of Act No. 1259 by the 1974 General Assembly of Georgia (Ga. L. 1974, p. 1138; Code Ann. § 81A-160 (d)), the trial court entered a judgment setting aside the default judgment. After the defendant filed the motion to set aside the default judgment, the plaintiff filed an objection to the hearing of evidence upon such motion in which it was contended that other than the above-referenced 1974 Act there was no procedure permitting the defendant to introduce evidence upon the motion to set aside the judgment. It was further contended in such motion that such Act, since it did not contain a prohibition against its having a retroactive effect, was unconstitutional. The judgment of the trial court setting aside the default judgment was certified for immediate review.

Argued September 12, 1974 Decided September 24, 1974. Roy J. Leite, Jr., Sexton & Skidmore, Rick S. Sexton, for appellant. Mackay & Elliott, Thomas W. Elliott, for appellee.

The plaintiff’s attack upon the 1974 Act of the General Assembly is not an attack upon the constitutionality of such Act but an attack upon its applicability to this case. It is in reality an attack upon the construction of such Act and not upon the Act itself. Under decisions exemplified by Potts v. State Hwy. Dept., 225 Ga. 6 (165 SE2d 726), and cases there cited, no constitutional question is raised within this court’s jurisdiction under the Constitution.

Transferred to the Court of Appeals.

All the Justices concur.

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Nichols, Presiding Justice.

The plaintiff in the trial court sued the defendant, [829]*829an alleged nonresident defendant, upon an account. Jurisdiction over the defendant was alleged to be in the trial court because the defendant had conducted business within DeKalb County, Georgia. A default judgment was entered in November, 1972. In January, 1974, a motion to set aside such default judgment was filed by the defendant and in May, 1974, after the enactment of Act No. 1259 by the 1974 General Assembly of Georgia (Ga. L. 1974, p. 1138; Code Ann. § 81A-160 (d)), the trial court entered a judgment setting aside the default judgment. After the defendant filed the motion to set aside the default judgment, the plaintiff filed an objection to the hearing of evidence upon such motion in which it was contended that other than the above-referenced 1974 Act there was no procedure permitting the defendant to introduce evidence upon the motion to set aside the judgment. It was further contended in such motion that such Act, since it did not contain a prohibition against its having a retroactive effect, was unconstitutional. The judgment of the trial court setting aside the default judgment was certified for immediate review.

Argued September 12, 1974 Decided September 24, 1974. Roy J. Leite, Jr., Sexton & Skidmore, Rick S. Sexton, for appellant. Mackay & Elliott, Thomas W. Elliott, for appellee.

The plaintiff’s attack upon the 1974 Act of the General Assembly is not an attack upon the constitutionality of such Act but an attack upon its applicability to this case. It is in reality an attack upon the construction of such Act and not upon the Act itself. Under decisions exemplified by Potts v. State Hwy. Dept., 225 Ga. 6 (165 SE2d 726), and cases there cited, no constitutional question is raised within this court’s jurisdiction under the Constitution.

Transferred to the Court of Appeals.

All the Justices concur.

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Bluebook (online)

209 S.E.2d 174, 232 Ga. 828, 1974 Ga. LEXIS 1099, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thrift-v-vi-vin-products-inc-ga-1974.

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