(Ga. L. 1895, p. 42, § 1; Civil Code 1895, §§ 4976, 4977; Civil Code 1910, §§ 5554, 5555; Code 1933, § 81-205.)
Cross references.- Service of process by publication generally, § 9-11-4.
Law reviews.- For article, "The 1967 Amendments to the Georgia Civil Practice Act and the Appellate Procedure Act," see 3 Ga. St. B.J. 383 (1967). For article summarizing law relating to jurisdiction and venue over domestic and foreign corporations in Georgia, and service therein, see 21 Mercer L. Rev. 457 (1970). For comment on Calhoun Nat'l Bank v. Bentley, 189 Ga. 355, 6 S.E.2d 288 (1939), see 2 Ga. B.J. 68 (1940).
JUDICIAL DECISIONS
This section applies exclusively to actions in rem; to hold otherwise would result in a collision with the due process clause of the federal Constitution. Caldwell v. Hill, 179 Ga. 417, 176 S.E. 381 (1934) (see O.C.G.A. § 9-10-71).
This section has no application where sole object is to deprive defendant of the defendant's right to act as trustee, and by express statement of petitioners does not seek to change the property rights, claims, or interests of anyone. Caldwell v. Hill, 179 Ga. 417, 176 S.E. 381 (1934) (see O.C.G.A. § 9-10-71).
This section does not purport to create any new ground of equity jurisdiction; it merely provides a method of service on nonresidents in cases where recognized equitable principles are involved. Grimmett v. Barnwell, 184 Ga. 461, 192 S.E. 191 (1937) (see O.C.G.A. § 9-10-71).
Personal jurisdiction necessary to permanently enjoin defendant.
- The trial court was correct in concluding that personal jurisdiction over defendant was necessary to permanently enjoin defendant from enforcement of the wage assignment order against plaintiff, where defendant levied plaintiff's military wages due to arrearages in alimony and child support payments. Millard v. Millard, 204 Ga. App. 399, 419 S.E.2d 718 (1992).
In equitable actions brought against nonresident, service by publication can be had under this section; if there be in such cases a resident defendant against whom substantial relief is prayed, the action must be brought in the county where such defendant resides. Borden v. I.B.C. Corp., 220 Ga. 688, 141 S.E.2d 449 (1965) (see O.C.G.A. § 9-10-71).
Section applicable only to actions in rem.
- A state statute authorizing service of process by publication or otherwise upon absent and nonresident defendants has no application to actions in personam; but it is sufficient authority for the institution of actions in rem, where, under recognized principles of law, such actions may be instituted against nonresident defendants. Irons v. American Nat'l Bank, 178 Ga. 160, 172 S.E. 629 (1933).
Service by publication on nonresident ineffectual for any in personam purpose.
- Substituted service by publication, or in any other authorized form, is sufficient to inform a nonresident of the object of proceedings where property is once brought under the control of the court by seizure or some equivalent act; but where the action is brought to determine the nonresident's personal rights and obligations, that is, where it is merely in personam, such service upon the nonresident is ineffectual for any purpose. Irons v. American Nat'l Bank, 178 Ga. 160, 172 S.E. 629 (1933).
Service by publication on nonresident in action in rem authorized.
- While the courts of this state have no extraterritorial jurisdiction and cannot make citizens of other states amenable to their process, or conclude them by a judgment in personam without their consent, or unless such a defendant has expressly or implicitly waived jurisdiction, yet where the subject of the action relates to an actionable interest or claim by the plaintiff in real or personal property located in this state, a court of equity of this state will have jurisdiction to render a decree in rem with respect to the particular property involved, so as to exclude the adverse interest of a nonresident who has been made a party to the proceeding, and who has been served by publication as provided by statute. Blount v. Metropolitan Life Ins. Co., 190 Ga. 301, 9 S.E.2d 65 (1940).
Court without in personam jurisdiction over nonresident absent personal service or waiver of service.
- In a proceeding where the nonresident is not served personally, and does not waive service, if the relief sought is only such as operates against the person, the court is without jurisdiction to render a decree granting such relief. Toomer v. Hopkins, 204 Ga. 34, 48 S.E.2d 733 (1948).
Georgia law does not provide for service by publication or otherwise upon nonresidents in actions in personam. James Talcott, Inc. v. Allahabad Bank, Ltd., 444 F.2d 451 (5th Cir.), cert. denied, 404 U.S. 940, 92 S. Ct. 280, 30 L. Ed. 2d 253 (1971).
Judgments in personam cannot validly be rendered against nonresident defendants where service is had only by publication. James Talcott, Inc. v. Allahabad Bank, Ltd., 444 F.2d 451 (5th Cir.), cert. denied, 404 U.S. 940, 92 S. Ct. 280, 30 L. Ed. 2d 253 (1971).
Nonresident corporation claiming transfer of stock from a domestic corporation may be served by publication. People's Nat'l Bank v. Cleveland, 117 Ga. 908, 44 S.E. 20 (1903).
Nonresident executor or testator who agreed to sell stock may be served by publication. Hamil v. Flowers, 133 Ga. 216, 65 S.E. 961 (1909).
Foreign stockholder against whom a minority stockholder seeks a receivership of stock may not be served by publication. Tennessee Fertilizer Co. v. Hand, 147 Ga. 588, 95 S.E. 81 (1918). See Forrester v. Forrester, 155 Ga. 722, 118 S.E. 373, 29 A.L.R. 1363 (1923).
This section authorizes service on a nonresident grantee in an action to cancel a deed. Berry v. Williams, 141 Ga. 642, 81 S.E. 881 (1914) (see O.C.G.A. § 9-10-71).
Service by publication insufficient to foreclose law lien by attachment against nonresident.
- No contract or law lien held by the plaintiff can be foreclosed by attachment without making the nonresident a party; publication under this section will not suffice. Owens v. Atlanta Trust & Banking Co., 119 Ga. 924, 47 S.E. 215 (1904) (see O.C.G.A. § 9-10-71).
Court without jurisdiction over nonresident in in personam action seeking settlement of partnership affairs.
- A petition in equity seeking an accounting and settlement of partnership affairs and a decree of title to a one-half interest in land alleged to be the property of the partnership, the allegations of which show that legal title to the land is in the defendant, who paid the purchase price, held a deed to the property, and was in possession, is an action in personam; since the defendant, a nonresident, was not served and did not waive service, the superior court was without jurisdiction of the in personam action. Sternbergh v. McClure, 217 Ga. 278, 122 S.E.2d 217 (1961).
Service by publication sufficient in action by creditor seeking money judgment against tenant in common.
- In an equitable action by a creditor against a nonresident tenant in common, seeking a money judgment and a special lien on the tenant's interest in the land, service may be perfected by publication as provided by this section. Calhoun Nat'l Bank v. Bentley, 189 Ga. 355, 6 S.E.2d 288 (1939).
Situs of insurance policy is state where it is actually held and possessed by insured.
- The fact that an insurance policy was issued in another state where the insured and the beneficiary then resided, or that it was payable at the home office of the insurance company in a foreign state, does not operate to fix the status of the policy, as personal property, in a state other than the one where it is actually held and possessed by the insured, a resident of the county where the action is brought. Blount v. Metropolitan Life Ins. Co., 190 Ga. 301, 9 S.E.2d 65 (1940).
Service may be made by publication on nonresident claiming interest in real estate in state in a case where it is sought to enforce, by decree for specific performance, any contract in reference thereto. Toomer v. Hopkins, 204 Ga. 34, 48 S.E.2d 733 (1948).
Service by publication sufficient in action for specific performance regarding title to lands.
- Under proper allegations and prayers, in a proceeding seeking specific performance, the courts of this state can determine the title to lands within the state in the county where the land lies, although service is had on the nonresident defendant by publication only. Toomer v. Hopkins, 204 Ga. 34, 48 S.E.2d 733 (1948).
Cited in Roberts v. Burnett, 164 Ga. 64, 137 S.E. 773 (1927); Watters v. Southern Brighton Mills, 168 Ga. 15, 147 S.E. 87 (1929); Hale v. Turner, 185 Ga. 516, 195 S.E. 423 (1937); Foremost Dairy Prod., Inc. v. Sawyer, 185 Ga. 702, 196 S.E. 436 (1938); Sweat v. Arline, 186 Ga. 460, 197 S.E. 893 (1938); Malsby v. Simmons Mfg. Co., 191 Ga. 477, 12 S.E.2d 880 (1940); Hirsch v. Northwestern Mut. Life Ins. Co., 191 Ga. 524, 13 S.E.2d 165 (1941); Tow v. Evans, 194 Ga. 160, 20 S.E.2d 922 (1942); Peoples Loan Co. v. Allen, 199 Ga. 537, 34 S.E.2d 811 (1945); Lurz v. John J. Thompson & Co., 86 Ga. App. 295, 71 S.E.2d 675 (1952); Little v. King, 211 Ga. 872, 89 S.E.2d 511 (1955); Rockefeller v. First Nat'l Bank, 213 Ga. 493, 100 S.E.2d 279 (1957); Tuten v. Zetterower, 218 Ga. 230, 126 S.E.2d 752 (1962); Hall v. Hall, 230 Ga. 873, 199 S.E.2d 798 (1973).
RESEARCH REFERENCES
Am. Jur. 2d.
- 62B Am. Jur. 2d, Process, § 101 et seq.
C.J.S.- 72 C.J.S., Process, § 76 et seq.
ALR.
- Jurisdiction of suit to remove cloud or quiet title upon constructive service of process against nonresident, 51 A.L.R. 754.
May suit for injunction against a nonresident rest upon constructive service or service out of state, 69 A.L.R. 1038.
Constructive service of process against nonresident in suit for specific performance of contract relating to real property within state, 93 A.L.R. 621; 173 A.L.R. 985.
Statute providing for service by publication on "unknown persons" in action relating to real property as permitting such service on persons in possession or occupation of the land, 146 A.L.R. 713.
Exemption of member of armed forces from service of civil process, 147 A.L.R. 1311; 148 A.L.R. 1388; 149 A.L.R. 1457; 150 A.L.R. 1420; 151 A.L.R. 1456; 152 A.L.R. 1452; 153 A.L.R. 1422; 154 A.L.R. 1448; 155 A.L.R. 1452; 156 A.L.R. 1450; 157 A.L.R. 1450; 158 A.L.R. 1450.
Suits and remedies against alien enemies, 155 A.L.R. 1451; 156 A.L.R. 1448; 157 A.L.R. 1449.
Constructive service of process in action against nonresident to set aside judgment, 163 A.L.R. 504.
Validity and effect of constructive service upon nonresident in action, otherwise in personam, seeking lien or title in respect to property in state described in pleadings, but not attached, 174 A.L.R. 417.
Difference between date of affidavit for service by publication and date of filing or of order for publication as affecting validity of service, 46 A.L.R.2d 1364.