Under the undisputed facts of the case, the court properly overruled the demurrer to the motion in arrest of judgment, but erred in denying the motion.
DECIDED SEPTEMBER 27, 1945. K. M. Garrett brought an action in damages for personal injuries, in the superior court of Cobb County, against Gordon Reeves, Samuel P. Evans, and David P. Ross. The petition alleged that Reeves was a resident of said county, and that Evans and Ross were residents of Fulton County. The petition set forth separate acts of negligence by the three defendants, and alleged that those acts "were the concurrent causes that operated directly in bringing about and in causing the wrecking of the car in which plaintiff was riding and the injuries he received therefrom; that the said separate acts of negligence on the part of the defendants combined naturally and directly, and co-operated jointly and concurrently in bringing about and in causing said injuries and damages to plaintiff; and that they together constituted the proximate cause of plaintiff's injuries, and the said defendants are therefore jointly and severally liable to plaintiff in the sum of $5,000." The petition was filed on October 13, 1944. In December, 1944, the two non-resident defendants filed a plea to the jurisdiction of the court, alleging that they were not residents of Cobb County but were residents of Fulton County, and that the superior court of Fulton County had jurisdiction of the suit so far as they were concerned at the time the suit was filed.
The same two defendants filed a demurrer to the petition, in which they stated that they were "expressly reserving their right to insist upon their plea to the jurisdiction filed in the case." The demurrer to the petition was overruled, and no exception was filed to that judgment. The non-resident defendants also filed an answer, in which they stated that they were "reserving any and all rights under their plea to the jurisdiction and demurrer filed in the case, and expressly reserving all rights thereunder." No hearing on the plea to the jurisdiction was held, and the plea was not tried with the main case, which proceeded to verdict and judgment in favor of the plaintiff against the two non-resident *Page 847 defendants, the jury finding that the resident defendant was not liable. At the same term of court, the non-resident defendants filed a motion to arrest the judgment, on the ground that when the jury determined that the resident defendant was not liable, such determination established, as a matter of law, that the court had no jurisdiction over the non-resident defendants. The plaintiff demurred to that motion, the demurrer was overruled, exception was taken, and the ruling was assigned as error in a cross-bill of exceptions.
Upon a hearing, the motion in arrest of judgment was denied, and that judgment is assigned as error in the main bill of exceptions. It is well-settled law, by numerous and repeated decisions of the Supreme Court and this court, that, where a single suit is brought against several joint tort-feasors in a county where one of them is a resident, and where the others reside in another county of the State, and, where on the trial of the case, the resident defendant is found not liable by the jury, and the non-resident defendants are found liable, the judge is without jurisdiction to enter judgment against the non-resident defendants. Lester v. Mathews, 56 Ga. 656; Rounsaville v.McGinnis, 93 Ga. 579 (21 S.E. 123); Hamilton v. DuPre,111 Ga. 819 (35 S.E. 684); Central of Ga. Ry. Co. v.Brown, 113 Ga. 414 (38 S.E. 989, 84 Am. St. R. 250); Ross v. Battle, 117 Ga. 877, 880 (45 S.E. 252); Warren v.Rushing, 144 Ga. 612 (87 S.E. 775); Christian v. Terry,36 Ga. App. 815 (138 S.E. 244); Turner v. Shackleford,39 Ga. App. 49 (145 S.E. 913); Metcalf v. Hale, 42 Ga. App. 402 (156 S.E. 301); Samples v. Shaw, 47 Ga. App. 337 (170 S.E. 389); Daugherty v. Summerall, 64 Ga. App. 638 (13 S.E.2d 705).
The defendant in error, however, contends that the non-resident defendants waived their right to question the court's jurisdiction, because: (1) They filed a plea to the jurisdiction and did not insist upon it; (2) they filed a demurrer to the petition, which was overruled, and no exception was taken to that judgment; and (3) because of various acts of commission and omission in their conduct during the trial of the case. *Page 848
The plea to the jurisdiction when filed was premature, because the lack of jurisdiction did not become apparent until it had been determined by the verdict itself that the resident defendant was not liable. Warren v. Rushing (supra, p. 613). "In such an action the liability of the resident defendant is properly determined on the final trial; and, where on such trial no liability is established against him, no valid judgment can be rendered against the non-resident defendants, for want of jurisdiction." Warren v. Rushing, supra; Central of Ga. Ry.Co. v. Brown, supra; Hamilton v. DuPre, supra.
Did the non-resident defendants waive jurisdiction because they filed a demurrer to the petition and had it passed upon by the court? We think not. In their demurrer they expressly reserved their right to insist upon the plea to the jurisdiction, and in their answer they again expressly reserved all their rights under said plea. The plea to the jurisdiction was not, as is done in some cases, tried along with the main case and submitted to the jury, but remained quiescent and filed in the case and ready to be insisted upon if the jury should find the resident defendant not liable.
Upon the hearing of the motion in arrest of judgment, the defendant in error filed a lengthy, verified response thereto, in which he alleged that the movants, because of various acts of commission and omission in their conduct during the trial (which acts were set forth in the response), had waived their right to insist, after the verdict and judgment, that the court had no jurisdiction over them. In our opinion there was nothing in the record authorizing the court to find that the movants had for any reason ever waived their right to insist upon their plea. We hold that the overruling of the motion to arrest the judgment was error, and that the court properly overruled the demurrer to that motion.
Judgment reversed on the main bill of exceptions; andaffirmed on the cross-bill. MacIntyre and Gardner, JJ., concur.