Veal v. General Accident Fire & Life Assurance Corp.

128 Ga. App. 610

• Court: Court of Appeals of Georgia
• Decided: March 14, 1973
• Docket: 47479
• Status: Published

Opinions

Bell, Chief Judge.

Plaintiff in a prior personal injury action arising out of a vehicular collision obtained an in personam judgment against Zebbie Williams. Service upon the defendant Williams was attempted by publication under CPA § 4 (e) (1) (i) (Code Ann. § 81A-104 (e) (1) (i)). This suit against the insurance company followed. The plaintiff seeks to collect her judgment claiming that Zebbie Williams was an insured driver under the terms of an automobile liability policy issued by the defendant. The defendant was granted a summary judgment. Held:

Argued September 6, 1972 — Decided March 14, 1973

The motion for summary judgment was based in part on the insurer’s defense that the prior judgment against Zebbie Williams was void as the court in which the judgment was rendered did not have jurisdiction over his person. A void judgment may be attacked in any court and by any person. CPA § 60 (a) (Code Ann. § 81A-160(a)). In National Surety Corp. v. Hernandez, 120 Ga. App. 307 (170 SE2d 318) it was held that "by its own terms the provision in § 81A-104 (e) (1) for service by publication is limited in § 81A-104 (i) by the qualification that 'the provisions for service by publication herein provided shall apply in any action or proceeding in which service by publication now or hereafter may be authorized by law.’” While Hernandez concerned a nonresident defendant and it is not clear here as to whether Zebbie Williams was a resident of this state and then absconded to Florida or was a nonresident at the time of the collision, the result is the same. There is no provision in this state whereby courts may acquire jurisdiction over a defendant by service by publication and then render an in personam judgment against him. See Young v. Morrison, 220 Ga. 127 (137 SE2d 456). Consequently, the judgment which plaintiff seeks to enforce against the insurer was void. The trial court properly granted the motion for summary judgment.

Judgment affirmed.

Eberhardt, P. J., Quillian, Clark and Stolz, JJ., concur. Hall, P. J., Pannell and Deen, JJ., concur in the judgment only. Evans, J., dissents. Rehearing denied March 29, 1973 Benjamin Zeesman, for appellant. Jay, Garden & Sherrell, Clayton Jay, Jr., for appellee.