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Action on insurance policy. Before Judge Renfroe. Bulloch Superior Court. December 31, 1953.
Where the petition fails to show proper venue in the county in which the suit is brought, but where the defendant appears and pleads to the merits without objection to the venue or reservation of the right to object, the defendant has waived his right to be sued in the venue provided by law, and cannot afterwards object to the venue by a motion to dismiss the case.
Clifford A. Peacock brought suit in Bulloch County against George Washington Life Insurance Company on a hospital and surgical-expense policy. He first alleged that the defendant insurance company was a nonresident, having its principal office in Charleston, West Virginia, but also having an agent, Guy Tyler, in Fulton County, upon whom service of process could be made. A second original of the petition was duly served upon Tyler in Fulton County.
The defendant answered within 30 days from the date when Tyler was served. The allegations as to its residence and its agent were admitted, but liability under the terms of the policy was denied." The answer was amended on July 18, 1953, to allege fraud in the inducement of the policy.
On July 28, 1953, the plaintiff amended his petition so as to allege, in place of the general allegation of Tyler's agency, that the defendant had appointed Guy Tyler, of Fulton County, for the specific purpose of acknowledging or accepting service of process for and in behalf of the defendant, in conformity with Code 56-603.
On October 27, 1953, the defendant moved to dismiss the suit on grounds that the suit should have been brought in Fulton County, and that the petition did not show venue in Bulloch County, since it was not alleged that the defendant had an agent or place of doing business in Bulloch County. The court denied the motion to dismiss, and the defendant assigns error on this ruling.
McConnon & Co. v. Martin, 33 Ga. App. 392 (1) (126 S. E. 272). And a defendant cannot later withdraw his plea to the merits and move to dismiss the petition on the ground that it does not show the proper venue. East Tenn., Va. & Ga. Ry. Co. v. Suddeth, 86 Ga. 388 (12 S. E. 682).
There are some mandatory and exclusive provisions for the county in which certain actions must be brought, and these provisions may not be waived, since they operate to limit the jurisdiction of a court over the subject matter. See, for instance, Porter v. Employers Liability Ins. Co., 85 Ga. App. 497 (69 S. E. 2d 384), and Code 114-710; also Code 94-1101, as applied in Summers v. Southern Ry. Co., 118 Ga. 174, 175 (45 S. E. 27), and in Central of Ga. Ry. Co. v. Dowe & Co., 6 Ga. App. 858 (1) (65 S. E. 1091). But, before the amendment of the latter section in 1892, its terms were held to be permissive and cumulative as to venue, and not exclusive. Williams v. East Tenn., Va. & Ga. Ry. Co., 90 Ga. 519 (16 S. E. 303).
Code 56-601 provides in part: "Whenever any person shall have any claim or demand upon any insurance company having agencies or more than one place of doing business, such person may institute suit against the company in the county where," etc. Code (Ann. Supp.) 22-1509 (Ga. L. 1946, p. 687, 689) provides: "A foreign corporation, doing business in this State, and which does not maintain a place of business or agent in this State upon whom service may be perfected, shall be suable hereunder in any county of this State in which," etc. The Code section construed in the Williams case and held to be permissive as to venue declared that "all railroad companies shall be liable to be sued in any county in which the cause of action originated"; and the language of Code 56-601 and Code (Ann. Supp.) 22-1508 is no more restrictive than this provision was.
The petition in this case first alleged that the defendant is a foreign insurance company having an agent in Fulton County. The amended petition shows only that the defendant is a foreign insurance company which had appointed an agent in Fulton County specifically for the acceptance of service of process, in conformity with Code 56-603. See Export Ins. Co. v. Womack, 165 Ga. 815 (142 S. E. 851). There are no allegations as to where the contract of insurance was made or to be performed, or in the amended petition, as to the defendant's having an agency or place of business in this State, or even doing business in this State. The petition, before or after amendment, did not affirmatively show that the suit was properly brought in Bulloch County, under either Code 56-601 or Code (Ann. Supp.) 22-1509, which are both permissive and not exclusive as to venue.
However, the defendant waived its right to object to the venue by filing its answer, in which it denied liability under the terms of the policy sued on, without objecting to the venue by timely plea or motion, and without reserving its right to do so. The court did not err in denying the defendant's motion to dismiss the case.
Judgment affirmed. Felton, C. J., and Quillian, J., concur.
Ralph U. Bacon, W. Roscoff Deal, contra.
Geo. M. Johnston, for plaintiff in error.
DECIDED JUNE 23, 1954.
Saturday May 23 03:36 EDT

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