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Lawskills.com Georgia Caselaw
TAYLOR v. R. O. A. MOTORS, INC.
40194.
PANNELL, Judge.
Breach of lease contract. Fulton Civil Court. Before Judge Camp.
1. The Act of 1918 (Ga. L. 1918, pp. 136, 137, codified in the Code of 1933 as 22-1210 and 22-1211) applies to foreign corporations. Manufacturing Lumbermen's Underwriters v. South Ga. R. Co., 57 Ga. App. 699, 702 (196 SE 244) (decided prior to the Corporation Act of 1938, Ga. L. 1937-38, Ex. Sess., pp. 214 et seq.).
2. It is a well settled rule of law that a valid subsisting statute is not repealed by implication by a later Act unless they are generally inconsistent or unless the later Act covers the entire field of the former legislation. Fairfax Bldg. Co. v. Oldknow, 46 Ga. App. 281 (167 SE 538).
3. While that portion of the Act of 1918, codified as Code 22-1210, and providing that, "The dissolution of a corporation either as a result of the expiration of its charter, or for any other cause, shall not bring about its total extinction nor operate to extinguish any demand or cause of action against it in favor of any person whomsoever, whether arising from contract or tort, nor shall such dissolution work the abatement of any suit pending against it at the time of such dissolution, but all such pending suits may be prosecuted and enforced to a conclusion as though such corporation were still undissolved," may have been superseded as to its applicability to local corporations by the Corporation Act of 1938 (Ga. L. 1937-38, Ex. Sess., p. 214; Code Ann. Ch. 22-18), and particularly as to those matters contained in 36 of that Act (Code Ann. 22-1874), providing that, "All corporations, whether they expire by their own limitation or are otherwise dissolved, shall nevertheless be continued for the term of three years and until final disposition of all suits begun within that time from such expiration or dissolution bodies corporate for the purpose of prosecuting and defending suits by or against them and enabling them gradually to settle and close their business, to dispose of and convey their property and to divide their assets, but not for the purpose of continuing the business for which the said corporation shall have been established," which latter section has been held by the Supreme Court of the State of Georgia not to refer to dissolved foreign corporations insofar as a suit in this State by such corporations is concerned, Trust Co. of Ga. v. Mortgage-Bond Co. of N. Y., 203 Ga. 461 (46 SE2d 883), and may have been superseded by 40 of the Corporation Act of 1938, Code Ann. 22-1879, as to its applicability to both domestic and foreign corporations insofar as it relates to survival of pending suits, the Corporation Act of 1938 did not supersede that portion of the Acts of 1918 codified as Code 22-1211, as the subject matter dealt with in this Code section, that is, service of process on a dissolved nonresident corporation, is not covered by the Corporation Act of 1938, and is not in conflict with that Act.
4. It follows, therefore, that the suit brought in the instant case against a foreign corporation, which formerly did business in this State, said suit claiming damages arising out of an alleged breach of a lease contract involving real estate in this State and entered into within this State, and also damages arising out of acts of negligence of the agents of the corporation committed while the corporation was doing business within this State, was properly served by service of process issued upon said suit upon the person who was an agent of such corporation and subject to be served as its agent at the time of such dissolution. Code 22-1211. The fact that such an agent had his agency terminated several days prior to the final certification of dissolution by proper authority of the foreign state, does not, in our opinion, prevent such agent from being its agent "at the time of such dissolution" within the meaning of said Code section, where the process of dissolution must of necessity have begun prior to the termination of the agency. To construe the language, "at the time of such dissolution," as referring to an instantaneous period of time would defeat the very purpose of the legislature in enacting the statute, that is, "to limit the effect of the dissolution of corporations, to furnish further remedies against corporations which have been dissolved . . . to extend the rights of creditors of said corporations, to provide for service of process against them, and for other purposes." See, in this connection, Gazan v. Heery, 183 Ga. 30 (187 SE 371, 106 ALR 498).
5. The trial court erred in sustaining the plea in abatement of the corporation claiming as ground of abatement that no legal service had been had upon the corporate defendant.
ON MOTION FOR REHEARING.
The motion for rehearing primarily sets out argument on the question of jurisdiction of the courts of this State over a dissolved foreign corporation. The record discloses that a plea to the jurisdiction is now pending in the lower court. Until this plea is passed upon by that court and exceptions thereto brought to this court, if same are made, that question is not decided.
The assignment of error at present before this court is only whether copy of suit and the process were properly served upon a dissolved foreign corporation. We held that it was properly served under Code 22-1211.
Motion denied.
Woodruff, Savell, Lane & Williams, E. L. Savell, B. F. Woodruff, contra.
E. C. Harvey, Jr., Warner S. Currie, for plaintiff in error.
DECIDED OCTOBER 7, 1963 -- REHEARING DENIED NOVEMBER 8, 1963.
Friday May 22 22:33 EDT


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