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Lawskills.com Georgia Caselaw
ALLIED FINANCE COMPANY, INC. v. PROSSER.
38698.
Action on foreign judgment; plea of nul tiel record. Bulloch Superior Court. Before Judge Renfroe.
FELTON, Chief Judge.
A State statute which provides for substituted service upon a nonresident individual doing business in that State and which provides: "For the purpose of this act, and without including other acts that may constitute doing business, any . . . nonresident natural person shall be deemed doing business in this State by entering into contract by mail or otherwise with a resident of Texas to be performed in whole or in part by either party in this State . . ." is unconstitutional as to an individual nonresident of such State in a case where the nonresident enters into a single contract for the purchase of an automobile either by signing a contract while temporarily in Texas or by mailing the contract to a resident of Texas. A judgment in personam against such a nonresident obtained in Texas and based upon substituted service upon the Secretary of State of Texas, will not be accorded full faith and credit by the courts of Georgia.
The plaintiff brought action against the defendant in the Superior Court of Bulloch County, Ga., to recover on a judgment it obtained against the defendant in the State of Texas. To the plaintiff's petition the defendant filed his answer, demurrer and special plea of nul tiel record, alleging that the judgment obtained in Texas is void for want of jurisdiction of the defendant by the Texas court. The record discloses that the plaintiff obtained a judgment for the unpaid balance of a note against the defendant, maker of the note, in the State of Texas. The petition in the action brought in the State of Texas against the defendant alleges that he is a resident of Statesboro, Ga. In that action service of process was made upon the defendant pursuant to an act of the legislature of the State of Texas which provides: "Any . . . nonresident natural person that engages in business in this State . . . shall be deemed equivalent to an appointment . . . of the Secretary of State of Texas as agent upon whom service of process may be made in any action, suit or proceedings arising out of such business done in this State, wherein such . . . nonresident natural person is a party or is to be made a party . . . For the purpose of this act . . . any nonresident natural person shall be deemed doing business in this State by entering into contract by mail or otherwise with a resident of Texas . . ." Service was made upon the Secretary of State of Texas, and notice to that effect was mailed to and received by the defendant. Thereafter, judgment by default was taken against the defendant. The defendant signed the note and conditional-sale contract on which the action was founded in connection with the trading of an automobile. It does not appear from the plea whether the defendant signed the note in Texas or mailed it to Texas from Georgia. The court entered its order sustaining the defendant's plea of nul tiel record, and it is to this ruling that the plaintiff excepts.
Art. IV, Sec. I of the Federal Constitution (Code 1-401) provides: "Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effects thereof." No question is raised concerning the manner of proving the judgment obtained. The sole question before the court is whether a judgment obtained in a sister State upon service of process as was made under the Texas statute, will be enforced and given full faith and credit in the courts of this State. Counsel for the plaintiff contends that the Texas act is not unlike the Georgia act (Ga. L. 1937, pp. 732, 733; Code Ann. 68-801) permitting service of process upon the Secretary of State of Georgia as agent for nonresident motorists involved in accidents upon highways of this State. As counsel for the plaintiff aptly points out in his brief: "The judgment of a court of one State, when sued on, pleaded, or introduced in evidence in another State, is entitled to receive the same faith, credit, and respect that is accorded to it in the State where rendered, so that if valid and conclusive there, it is so in all other States." We must concede that all authority relied upon by the plaintiff is correct to the extent that full faith and credit will be accorded by this State to judgments rendered in sister States based upon the constitutional laws of our sister States. The question in this case is whether the State of Texas had jurisdiction of the person of the defendant.
Looking back over this long history of litigation a trend is clearly discernible toward expanding the permissible scope of state jurisdiction over foreign corporations and other nonresidents." It is clear from this and the vast number of similar cases that the expansion of jurisdiction has been permitted in respect to corporations and individuals "doing business" in the State which, by statute, permits service of process upon a designated agent. We can find no case where the courts have stretched the term "doing business" to include a single business transaction entered into by an individual. We interpret "doing business" to mean the engagement for profit in some practice either repeatedly or possibly with the intention that the practice be repeated. To extend the term "doing business" to include the making of one contract with a resident of Texas as its act provides would render due process as it has applied to foreign individuals a complete nullity. "The authority of a court to issue and serve process is restricted to the territory where issued, and the court has no power to require persons not within such territory to appear." Milner v. Gatlin, 139 Ga. 109, 110 (2b) (76 S. E. 860). While the rule has understandably been stretched for reasons of public policy to include motorists statutes and insurance statutes, as in McGee v. International Life Ins. Co., supra, it is unthinkable that it should be expanded to cover the individual who enters into a single transaction with no intention of doing more. Concerning the Georgia Nonresident Motorists Act, supra, in the case of Wood v. Wm. B. Reilly & Co. Inc., 40 F. Supp. 507, 509, it was held: "The basis of constitutional validity apparent from these and all similar cases is the right of the State by the exercise of its police power to prescribe regulations necessary for the public safety and order in the operation of motor vehicles. The Georgia statute is necessarily directed at the identical evil sought to be cured by the legislation of other States and is likewise predicated upon the same constitutional basis. Thus it evidences no intention to enlarge jurisdiction or venue upon considerations of nonresident master and resident servant, or to evidence the imposition of the sanction of substituted service in case of the employment by a nonresident of a resident licensed and registered owner of an automobile." (Italics ours). "Where in a suit upon a foreign judgment, the judgment roll, which is attached to and made a part of the petition, shows upon its face that the court of the
State rendering the judgment sued on was without jurisdiction, the petition is subject to demurrer as setting forth no cause of action." Lurey v. Jos. S. Cohen & Sons Co., 86 Ga. App. 356 (71 S. E. 2d 689).
Since the unconstitutionality of the Texas statute did not appear on the face of the petition, the remedy of the defendant was therefore a resort to a plea of nul tiel record in which the unconstitutionality of the Texas statute is alleged. Therefore, the court properly sustained the defendant's plea of nul tiel record.
Judgment affirmed. Nichols and Bell, JJ., concur.
Anderson & Sanders, Cohen Anderson, Faye Sanders, contra.
Fred T. Lanier, Robert S. Lanier, for plaintiff in error.
DECIDED APRIL 4, 1961 -- REHEARING DENIED APRIL 20, 1961.
Friday May 22 23:17 EDT


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