Parties may not give jurisdiction to a court by consent, express or implied, as to the person or subject matter of an action. However, lack of jurisdiction of the person may be waived, insofar as the rights of the parties are concerned, but not so as to prejudice third persons.
(Orig. Code 1863, § 3389; Code 1868, § 3408; Code 1873, § 3460; Code 1882, § 3460; Civil Code 1895, § 5079; Civil Code 1910, § 5663; Code 1933, § 24-112.)
Law reviews.- For article discussing aspects of third party practice (impleader) under the Georgia Civil Practice Act, see 4 Ga. St. B. J. 355 (1968). For article, "Current Problems with Venue in Georgia," see 12 Ga. St. B. J. 71 (1975). For comment on Musgrove v. Musgrove, 213 Ga. 610, 100 S.E.2d 577 (1957), upholding the validity of divorce decree granted in county other than residence of defendant when defendant now plaintiff, admittedly waived process and consented to trial elsewhere, see 20 Ga. B. J. 548 (1958).
JUDICIAL DECISIONSANALYSIS
This Code section is a codification of preexisting law. Central Bank v. Gibson, 11 Ga. 453 (1852).
Language in the latter part of this Code section does not mean that parties can confer upon a court, by agreement or waiver, jurisdiction as to a subject matter. The statute was a codification of the preexisting law, and it has been declared that it was the same in effect after the adoption of the Code as before that time. Rosenthal v. Langley, 180 Ga. 253, 179 S.E. 383, appeal dismissed, 295 U.S. 720, 55 S. Ct. 916, 79 L. Ed. 1674 (1935).
Code section does not mean that parties can confer subject matter jurisdiction on court.
- Last sentence of this Code section does not mean that parties, by agreement or waiver, can confer jurisdiction of subject matter on the court, and as to the subject matter the court is limited by the power conferred upon the court by law. Champion v. Rakes, 155 Ga. App. 134, 270 S.E.2d 272 (1980).
Extent of relief against nonresident not served in this state.
- Extent of available judicial relief in reference to alimony against a nonresident defendant, who is not personally served in this state, or does not acknowledge service, or who does not voluntarily submit to the jurisdiction of the court by appearing and pleading, is confined to the seizure and utilization of such property as the defendant may own, situated within the jurisdiction of the court. Hicks v. Hicks, 193 Ga. 446, 18 S.E.2d 754 (1942).
Suit brought in county where neither defendant resided.
- Suit to remove from the record a certain year's support proceeding as a cloud upon the title of described land in plaintiff's possession was one in equity and not one respecting title to land, and should have been brought in the county of a defendant against whom substantial relief was sought; since the suit was brought in a county where neither defendant resided, the court was without jurisdiction of the subject matter and such jurisdiction could not be conferred by consent or waived by the parties. Sweatman v. Roberts, 213 Ga. 112, 97 S.E.2d 320 (1957).
Forum selection clause cannot confer subject matter jurisdiction.
- Trial court erred in entering an order enjoining the appellants from the appellants alleged continuing trespass on the appellee's premises because the trial court lacked subject matter jurisdiction as the premises were located in South Carolina; and the forum selection clause could not confer subject matter jurisdiction to the trial court as forum selection clauses did not address subject matter jurisdiction, but rather personal jurisdiction. MSM Poly, LLC v. Textile Rubber & Chem. Co., 353 Ga. App. 538, 839 S.E.2d 4 (2020).
Attachment proceedings.
- If a defendant in an attachment, at the time the attachment was issued and levied, resided in the county where it was returnable, but prior to the filing of the declaration changed the defendant's domicile to another county, the court wherein the attachment was pending did not have jurisdiction to render a general judgment against the defendant since the defendant had not appeared and made a defense, nor replevied the property levied upon. Varn v. Chapman, 137 Ga. 300, 73 S.E. 507 (1912).
Appeals.
- Without proper and timely filing of a notice of appeal, dismissal is required in spite of the fact of consent given by opposing counsel to the late appeal as parties may not give jurisdiction to a court by consent, express or implied, as to the person or subject matter of an action. Clark v. State, 182 Ga. App. 752, 357 S.E.2d 109 (1987).
Appellate court needs to assess jurisdiction before proceeding.
- Appellate court was unable to address the merits of the business owner's appeal because the court was unable to determine whether the court had subject matter jurisdiction as it was necessary to determine if the power company properly filed a motion for contempt or impermissibly attempted to initiate a new civil action. Cowart v. Georgia Power Company, 354 Ga. App. 748, 841 S.E.2d 426 (2020).
Cited in Walker v. Grand Int'l Bhd. of Locomotive Eng'rs, 186 Ga. 811, 199 S.E. 146 (1938); Calhoun ex rel. Chapman v. Gulf Oil Corp., 189 Ga. 414, 5 S.E.2d 902 (1939); Toler v. Goodin, 74 Ga. App. 468, 40 S.E.2d 214 (1946); Tatum v. Tatum, 203 Ga. 406, 46 S.E.2d 915 (1948); Berger v. Noble, 81 Ga. App. 34, 57 S.E.2d 844 (1950); Porter v. Employers Liab. Ins. Co., 85 Ga. App. 497, 69 S.E.2d 384 (1952); Curtis v. Curtis, 215 Ga. 367, 110 S.E.2d 668 (1959); Biddinger v. Fletcher, 224 Ga. 501, 162 S.E.2d 414 (1968); Louisville & Nashville R.R. v. Bush, 131 Ga. App. 405, 206 S.E.2d 58 (1974); Vector Co. v. Star Enters., Inc., 131 Ga. App. 569, 206 S.E.2d 636 (1974); National Serv. Indus., Inc. v. Vafla Corp., 694 F.2d 246 (11th Cir. 1982); Newell v. Brown, 187 Ga. App. 9, 369 S.E.2d 499 (1988); Mitchell v. Mitchell, 220 Ga. App. 682, 469 S.E.2d 540 (1996); Merritt v. City of Warner Robins, 243 Ga. App. 693, 534 S.E.2d 149 (2000); Blue Cross & Blue Shield of Ga., Inc. v. Deal, 244 Ga. App. 700, 536 S.E.2d 590 (2000); Gallagher v. Fiderion Group, LLC, 300 Ga. App. 434, 685 S.E.2d 387 (2009); State v. Baxter, 300 Ga. 268, 794 S.E.2d 49 (2016); Ultra Group of Companies, Inc. v. Alli, 352 Ga. App. 71, 833 S.E.2d 751 (2019), cert. denied, No. S20C0336, 2020 Ga. LEXIS 421 (Ga. 2020); Mathenia v. Brumbelow, 308 Ga. 714, 843 S.E.2d 582 (2020).
Subject Matter Jurisdiction
Agreement of parties.
- Jurisdiction cannot be conferred upon a court or administrative body, such as the Department of Industrial Relations (now State Board of Workers' Compensation), by the agreement or consent, past or present, of the parties if jurisdiction over the subject matter of the claim or controversy does not actually exist. City Council v. Reynolds, 50 Ga. App. 482, 178 S.E. 485 (1935).
Jurisdiction of subject matter of suit cannot be conferred by agreement or consent, or be waived or "based on an estoppel of a party to deny that it exists." Langston v. Nash, 192 Ga. 427, 15 S.E.2d 481 (1941).
Consent of parties cannot give court jurisdiction of subject matter when the court has none by law, and if the court discovers from the record that a judgment has been rendered by a court having no jurisdiction of the subject matter, and the case is brought to the Georgia Supreme Court for review upon writ of error (see now O.C.G.A. §§ 5-6-49 and5-6-50), the Supreme Court will of the court's own motion reverse the judgment. Sweatman v. Roberts, 213 Ga. 112, 97 S.E.2d 320 (1957).
Waiver.
- As to the subject matter, the jurisdiction of a court is limited by the power conferred upon the court by law, and cannot be given additional jurisdiction by waiver. Thomas v. Calhoun Nat'l Bank, 157 Ga. 475, 121 S.E. 808 (1924).
Subject matter jurisdiction is not amenable to waiver. In re C.F., 199 Ga. App. 858, 406 S.E.2d 279 (1991).
Equity jurisdiction.
- Although an agreement by parties is entitled to consideration, the parties cannot by waiver or consent confer equity jurisdiction on a court when the court is otherwise without jurisdiction. Sherrer v. Hale, 248 Ga. 793, 285 S.E.2d 714 (1982).
Waiver as to rights of parties.
- Parties, by consent, express or implied, cannot give jurisdiction to court as to the person or the subject matter. It may be waived, however, as to the person, so far as the rights of the parties themselves are concerned. Lott v. City of Waycross, 152 Ga. 237, 110 S.E. 217 (1921).
Provision in agreement ineffective to confer jurisdiction.
- Provision in an agreement to submit to arbitration for an appeal to the superior court is ineffective to confer on the superior court jurisdiction to entertain the appeal. Jurisdiction as to the subject matter cannot be conferred by consent. Georgia Power Co. v. Friar, 47 Ga. App. 675, 171 S.E. 210 (1933), aff'd, 179 Ga. 470, 175 S.E. 807 (1934).
Jurisdiction held not conferred by implied consent.
- When the City of Augusta and claimant, a member of the city's fire department, made a written agreement for the payment of a stipulated weekly compensation to the claimant as an "employee" for the claimant's temporary total disability, and the Department of Industrial Relations (now State Board of Workers' Compensation) made an award confirming the agreement, without any question being presented as to whether the claimant was actually an employee or an officer of the city, and the claimant, after the conclusion of the payments under such agreement and award, filed a new application to the department for additional compensation to cover a permanent partial loss of use of the claimant's left hand resulting from the original injury, and when under the undisputed facts presented at the hearing of the second claim, and the foregoing rulings, the claimant was actually a public officer and not an employee of the city within the intent of the Workers' Compensation Act (O.C.G.A. T. 34, C. 9), it was error for the department to take jurisdiction of the new and additional claim since jurisdiction could not be thus imposed by implied consent any more than by the express consent of the city. City Council v. Reynolds, 50 Ga. App. 482, 178 S.E. 485 (1935).
No jurisdiction by consent after time for exercising such has expired.
- If jurisdiction may not be given by consent before the time is ripe for jurisdiction to attach, jurisdiction may not be given by consent after the time for exercising jurisdiction has expired. Pal Theatre, Inc. v. Tarver, 60 Ga. App. 817, 5 S.E.2d 277 (1939).
Effect of Lack of Jurisdiction
Power of court over subject matter is sine qua non to valid judgment, and may not be waived by consent of the parties. Champion v. Rakes, 155 Ga. App. 134, 270 S.E.2d 272 (1980).
Judgment is nullity absent jurisdiction.
- Suit in a court having no jurisdiction of the subject matter resulting in a judgment for the defendant is a nullity. Western Union Tel. Co. v. Taylor, 84 Ga. 408, 11 S.E. 396, 8 L.R.A. 189 (1890).
Void judgment will be reversed on review.
- When, in consideration of a case, it is discovered from the record that a judgment has been rendered by a court having no jurisdiction of the subject matter, that judgment will be reversed. Cutts v. Scandrett, 108 Ga. 620, 34 S.E. 186 (1899).
Invalid decision is not res judicata.
- If a court is wholly without jurisdiction of a given subject matter, an attempted decision of issues on that subject is invalid, and will not operate as res judicata in a subsequent suit concerning the subject matter in a court of competent jurisdiction. Dix v. Dix, 132 Ga. 630, 64 S.E. 790 (1909).
No consent or waiver of parties can make void judgment legal.
- If the court has no jurisdiction over the subject matter of a suit, parties cannot confer jurisdiction by agreement. The judgment in a case where the court is without jurisdiction is void, and no consent or waiver of the parties litigant can make it a legal judgment of a court of law or equity. O'Brien v. Harris, 105 Ga. 732, 31 S.E. 745 (1898).
Appellate court could not address the merits of the defendant's enumerations of errors as the power company did not properly invoke the jurisdiction of the trial court when the company attempted to initiate a new civil action by filing a contempt proceeding because an action for contempt was ancillary to the primary action and, as such, was not a pleading but a motion; thus, it was improper for the power company to initiate a new civil action to enforce contempt of an order from a prior case, and the trial court was without jurisdiction to consider the power company's improperly filed contempt proceeding. Cowart v. Georgia Power Company, 354 Ga. App. 748, 841 S.E.2d 426 (2020).
Waiver
Jurisdiction of person may be waived.
- This section has been construed to permit a party to waive lack of jurisdiction over the party's person. McGahee v. Hilton & Dodge Lumber Co., 112 Ga. 513, 37 S.E. 708 (1900); Sanford v. Tanner, 114 Ga. 1005, 41 S.E. 668 (1902).
It is permissible to waive jurisdiction over the person provided the court has jurisdiction of the subject matter of the suit. Southern Express Co. v. Bankr. Elec. Co., 126 Ga. 472, 55 S.E. 254 (1906).
Jurisdiction of a person may be waived. Harper v. Allen, 41 Ga. App. 736, 154 S.E. 651 (1930).
Jurisdiction of a person may be waived in connection with acknowledgement of service. Georgia Creosoting Co. v. Moody, 41 Ga. App. 701, 154 S.E. 294 (1930).
Consent to jurisdiction through forum selection clause.
- O.C.G.A. § 15-1-2 did not prohibit a party from waiving the defense of lack of personal jurisdiction by consensually subjecting itself to jurisdiction of the court through a forum selection clause in a contract. Apparel Resources Int'l, Ltd. v. Amersig S.E., Inc., 215 Ga. App. 483, 451 S.E.2d 113 (1994).
Filing of general demurrer (now motion to dismiss) is equivalent to plea to merits within this rule. Harper v. Allen, 41 Ga. App. 736, 154 S.E. 651 (1930).
Failure to plead jurisdiction waives irregularities.
- If a defendant appears and pleads to the merits, without pleading to the jurisdiction and without any protestation as to process or service, the defendant thereby admits the jurisdiction of the court and waives all irregularities of the process, or of the absence of process and the service thereof. Harper v. Allen, 41 Ga. App. 736, 154 S.E. 651 (1930).
Defendant's appearance in support of motion.
- In case of a judgment void for want of personal service of process, the defendant does not waive the question of jurisdiction or validate the void judgment by an appearance after judgment in support of a motion to set the judgment aside. Hicks v. Hicks, 193 Ga. 446, 18 S.E.2d 754 (1942).
Rights of Third Persons
Language refers to interferences with legal rights of third persons.
- The language "but not so as to prejudice third persons" does not refer to mere inconvenience and expense in defending an action properly brought, but to interferences with legal rights of third persons. Odgen Equip. Co. v. Talmadge Farms, Inc., 132 Ga. App. 834, 209 S.E.2d 260 (1974).
Parties may not waive jurisdiction to prejudice of third parties.
- Parties defendant to an equitable action who appear and plead to the merits without excepting to the jurisdiction thereby waive any objection to the jurisdiction of the person so far as those defendants are concerned; but parties cannot waive jurisdiction to the prejudice of third parties. White v. North Ga. Elec. Co., 139 Ga. 587, 77 S.E. 789 (1913).
Purchasers from defendant are bound by defendant's waiver.
- Though a defendant may not so waive a want of jurisdiction as to defendant's person as to affect third persons, yet purchasers from defendant whose rights originate after the judgment against defendant's rendered after such waiver by defendant are bound by defendant's waiver on the principle of estoppel. Glennville Bank v. Deal, 146 Ga. 127, 90 S.E. 958 (1916).
Error to join another party when no jurisdiction.
- When, to an action at law brought by a resident of Polk County against a defendant residing in Fulton County, an answer in the nature of a cross action (now counterclaim) was filed, in which substantial equitable relief was prayed against the plaintiff and a third party who was also a resident of Polk County, it was erroneous to make the latter, over defendant's objection, a party, and to refuse on defendant's motion to dismiss the cross action as to defendant, the ground of such objection and motion being that the court had no jurisdiction to grant as to defendant the relief sought. Terhune v. Pettit, 195 Ga. 793, 25 S.E.2d 660 (1943).
Section on point where third parties involved.
- Since former Code 1933, § 3-202 (see now O.C.G.A. § 9-10-30) can be reconciled with Ga. Const. 1976, Art. VI, Sec. XIV, Para. III (see now Ga. Const. 1983, Art. VI, Sec. II, Para. III), as to venue of equity cases only on the ground of waiver, then former Code 1933, § 24-112 (see now O.C.G.A. § 15-1-2), and particularly the latter portion thereof, was directly on point in a case involving third parties. Terhune v. Pettit, 195 Ga. 793, 25 S.E.2d 660 (1943).
RESEARCH REFERENCES
Am. Jur. 2d.
- 20 Am. Jur. 2d, Courts, § 90 et seq.
C.J.S.- 21 C.J.S., Courts, § 71 et seq.
ALR.
- Discretion of court to refuse to entertain action for nonstatutory tort occurring in another state or country, 32 A.L.R. 6; 48 A.L.R.2d 800.
Necessity as justifying action by judicial or administrative officer otherwise disqualified to act in particular case, 39 A.L.R. 1476.
Litigant's participation on merits, after objection to jurisdiction of person made under special appearance or the like has been overruled, as waiver of objection, 93 A.L.R. 1302; 62 A.L.R.2d 937.
Decree of divorce or separation as subject to attack because suit was brought in wrong county or judicial district, 130 A.L.R. 94.
Consent decree as affecting title to real estate in another state, 2 A.L.R.2d 1188.
Objection before judgment to jurisdiction of court over subject matter as constituting general appearance, 25 A.L.R.2d 833.
Validity of contractual provision limiting place or court in which action may be brought, 31 A.L.R.4th 404.