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Lawskills.com Georgia Caselaw
FOCHT v. AMERICAN CASUALTY COMPANY.
38690.
Garnishment. Fulton Superior Court. Before Judge Tanksley.
BELL, Judge.
1. Section 1-A of the act of 1957 (Ga. L. 1957, pp. 649-651), which provides for service through the Secretary of State upon a resident who lived in the State at the time of an accident creating a cause of action, but who moved outside the State before the action was instituted, may not be applied retroactively. The express enumeration in Section 4 of the act that Section 3 affects matters of procedure only and shall apply to all causes of action whether now in existence or arising after the passage of the act, indicates the intent of the General Assembly to have been that the other portions of the act were not to be given a retroactive effect.
2. As Section 1-A of the amendment to the statute creates a new right, this section of the statute as amended may not be given a retroactive effect.
The plaintiff below brought this action against Clarence L. Wright, Jr,, with the defendant American Casualty Company, as garnishee. The garnishment arose out of a prior judgment rendered by default in favor of the plaintiff on a cause of action arising out of an automobile collision which occurred on December 12, 1955. At the time of this collision, Wright was a resident of Atlanta, Fulton County, Georgia, but prior to the time the action for damages was brought against him he had moved away from the State and county and was allegedly residing in the State of Florida.
By stipulation between the parties, it was agreed that no personal service was ever rendered in the action against Clarence L. Wright, Jr. The plaintiff contends that service upon the Secretary of State of Georgia was valid and legal and conferred jurisdiction on the defendant Wright because of the act of the General Assembly approved March 13, 1957 (Ga. L. 1957, pp. 649-651; Code 68-808). The garnishee contends that this act has no application and that the judgment rendered against Wright is absolutely void because (a) no valid service of process was ever at any time made on the defendant Wright; (b) Wright never appeared in the action; (c) the copy of the complaint and summons mailed by the Secretary of State of Georgia was received by a different person; and (d) the defendant Wright who was insured by the garnishee was never notified of the pendency of the action.
The garnishee filed an answer denying indebtedness to Wright, which answer was traversed by the plaintiff, the contention of the plaintiff being that the garnishee is liable under the judgment rendered against Wright in the previous action. After due hearing, the trial judge overruled and denied the traverse of the plaintiff to the answer of the garnishee, and ordered the garnishee discharged, to which order exception was taken.
At the time of the prior suit against the defendant Wright, the statute providing for jurisdiction of suits against nonresidents, Code Ann. Ch. 68-8, did not contain any provision for jurisdiction to be obtained by service on the Secretary of State where the defendant was a resident of the State at the time of the accident or collision but ceased to be a resident prior to the service of any summons or other lawful process. Ga. L. 1957, pp. 649-651, amended the law so as to provide for service through the Secretary of State upon a resident who lived in the State at the time of an accident creating a cause of action, but who moved outside the State before the action was instituted. Code Ann. 68-808. This amendment to the law came almost one and a half years after the collision out of which the judgment in favor of the plaintiff was rendered. The garnishee's contention is that this subsequent statute cannot be given a retrospective operation so as to apply to the right of the plaintiff against the defendant Wright. It is, of course, essential to the rendition of a judgment against the garnishee that there be a valid existing judgment between the plaintiff and defendant Wright in the prior action. Ingram v. Jackson Mercantile Co., 2 Ga. App. 218 (58 S. E. 372). If the 1957 amendment to the Non-Resident Motorists Act does not apply retroactively, then the judgment was void and the garnishee was properly discharged by the trial court.
1. Code 102-104 provides, "Laws prescribe only for the future; they cannot impair the obligation of contracts, nor, usually, have a retrospective operation . . ." This is the general rule of statutory construction. 82 C. J. S., Statutes, 414, p. 981 et seq. However, a generally recognized exception to this rule is that statutes relating to remedies or procedure may be given a retrospective or retroactive construction. Code 102-104 and 82 C. J. S., Statutes, 421. Where it is possible to determine the intent of the legislature, unless there are constitutional obstacles, the intent of the legislature will govern as to whether the act is prospective only in its application. As we understand the amendment to the Non-Resident Motorists Act, as passed by the General Assembly in 1957, the legislative intent is clearly indicated as making only Section 3 of the Act apply to then existing causes of action. This intent is shown in Section 4 of the act which states, "Section 3 of this Act, affecting matters of procedure only, shall apply to all causes of action whether now in existence or arising after the passage hereof." Since the provisions of Section 3 have no bearing or relevancy upon the issue in this case, it is referred to here only for the purpose of showing the exclusive extent of the legislative intent and thus to illustrate the following point. Under an elementary rule of statutory interpretation, the express enumeration that Section 3 of the act is to be retroactive, by necessary implication, indicates the intent on the part of the General Assembly to have been that the other portions of the act were not to be given a retroactive effect. It thus seems clear that Section 1-A, which governs the effectiveness of the original service on the defendant Wright, and thus the decision here, was not extendable to situations existing prior to its enactment. It follows that the prior action and subsequent judgment against Wright were worthless.
2. Even if the intent of the legislature were not so apparent, there is yet another reason for holding the amendment applicable to the plaintiff's cause of action was not retroactive. This reason is that by this amendment a new right was created. Without the amendment the plaintiff had no right to bring an action for damages against a former Georgia resident in the courts of this State who had removed from the State before the action was instigated. By the amendment, if applicable, the plaintiff could force the former resident to litigate in the Georgia courts rather than in the State of his domicile. This would create a new right in the plaintiff and would impose a new obligation on the defendant. In Davis v. Jones, 247 Iowa 1031 (78 N. W. 2d 6), it was held that a similar amendment to the Iowa Non-Resident Motorists Act created a new right and, therefore, the statute could not be given a retroactive effect. Thus, "Where, under the guise of making a change in the remedy, a new right or obligation is created . . . it will not be construed to affect remedies and procedure as to causes of action arising before its passage." 82 C.J.S., Statutes, 421, p. 998. The amendment here created a new right in the plaintiff and imposed a new obligation on the defendant. Accordingly, it cannot be given a retrospective application. To hold to the contrary would raise constitutional questions of due process. Cf. 16-A, C.J.S., Constitutional Law, 620, p. 812.
The trial judge properly overruled the traverse of the plaintiff to the answer of the garnishee and discharged the garnishee.
Judgment affirmed. Felton, C. J., and Nichols, J., concur.
Smith, Field, Ringel, Martin & Carr, H. A. Stephens, Jr., contra.
Scott Walters, Jr., for plaintiff in error.
DECIDED FEBRUARY 8, 1961.
Friday May 22 23:28 EDT


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