The judgment of a court having no jurisdiction of the person or the subject matter or which is void for any other cause is a mere nullity and may be so held in any court when it becomes material to the interest of the parties to consider it.
(Orig. Code 1863, § 3513; Code 1868, § 3536; Code 1873, § 3594; Code 1882, § 3594; Civil Code 1895, § 5369; Civil Code 1910, § 5964; Code 1933, § 110-709.)
Cross references.- For corresponding provision relating to criminal procedure, see § 17-9-4.
Law reviews.- For comment on Musgrove v. Musgrove, 213 Ga. 610, 100 S.E.2d 577 (1957), upholding the validity of a divorce decree, see 20 Ga. B.J. 548 (1958).
JUDICIAL DECISIONSANALYSIS
General Consideration
Section not applicable.
- In the absence of evidence that the trial court lacked jurisdiction over the subject matter or the parties, the Georgia judgment was not void, rather it was merely voidable and O.C.G.A. § 9-12-16, did not apply. Williams v. Willis, 340 Ga. App. 740, 798 S.E.2d 323 (2017).
Principles of former Code 1933, § 110-709 (see now O.C.G.A. § 9-12-16) applied to Ga. L. 1974, p. 1138, § 1 (see now O.C.G.A. § 9-11-60(e)). Canal Ins. Co. v. Cambron, 240 Ga. 708, 242 S.E.2d 32, cert. denied, 439 U.S. 805, 99 S. Ct. 61, 58 L. Ed. 2d 98 (1978).
Section as remedy under O.C.G.A.
§ 9-11-60(e). - Former Code 1933, § 110-709 (see now O.C.G.A. § 9-12-16) gave a remedy under subsection (e) of Ga. L. 1974, p. 1138, § 1 (see now O.C.G.A. § 9-11-60) to third parties who attack a judgment as void for any cause. Canal Ins. Co. v. Cambron, 240 Ga. 708, 242 S.E.2d 32, cert. denied, 439 U.S. 805, 99 S. Ct. 61, 58 L. Ed. 2d 98 (1978); Bonneau v. Ohme, 244 Ga. 184, 259 S.E.2d 631 (1979).
"Void judgment" defined.
- Void judgment is no judgment. By it no rights are divested; from it no rights can be obtained. Being worthless in itself, all proceedings founded upon it are equally worthless. It neither binds nor bars any one. All acts performed under it and all claims flowing out of it are void. Stewart v. Golden, 98 Ga. 479, 25 S.E. 528 (1896); Shotkin v. State, 73 Ga. App. 136, 35 S.E.2d 556 (1945), cert. denied, 329 U.S. 740, 67 S. Ct. 56, 91 L. Ed. 638 (1946); Zachos v. Rowland, 80 Ga. App. 31, 55 S.E.2d 166 (1949); Adams v. Payne, 219 Ga. 638, 135 S.E.2d 423 (1964); Troup County Bd. of Comm'rs v. Public Fin. Corp., 109 Ga. App. 547, 136 S.E.2d 509 (1964).
Effect on person against whom void judgment is rendered.
- As to the person against whom a void judgment professes to be rendered, it binds the person in no degree whatever, it has no effect as a lien upon the person's property, it does not raise an estoppel against the person. As to the person in whose favor it professes to be, it places the person in no better position than the person occupied before; it gives the person no new right, but an attempt to enforce it will place the person in peril. As to third persons, it can neither be a source of title nor an impediment in the way of enforcing their claims. Shotkin v. State, 73 Ga. App. 136, 35 S.E.2d 556 (1945), cert. denied, 329 U.S. 740, 67 S. Ct. 56, 91 L. Ed. 638 (1946); Zachos v. Rowland, 80 Ga. App. 31, 55 S.E.2d 166 (1949).
Effect of subsequent actions on void judgment.
- Judgment really void cannot be vitalized by any subsequent action of the parties. Troup County Bd. of Comm'rs v. Public Fin. Corp., 109 Ga. App. 547, 136 S.E.2d 509 (1964).
Test to determine validity of judgment.
- One of the tests which can be applied to determine whether a judgment is void is whether the judgment can be set aside by motion in arrest of judgment. If the judgment can be arrested by motion, the judgment is always void. Chapman v. Taliaferro, 1 Ga. App. 235, 58 S.E. 128 (1907).
Test for collateral attack on judgment.
- One of the tests in determining whether a judgment is absolutely void and subject to collateral attack is whether the party attacking the judgment had been a party thereto. Then a motion in arrest of judgment could have been sustained for defects appearing in the face of the pleadings, which could not have been aided by amendment or cured by the verdict. Deck v. Shields, 195 Ga. 697, 25 S.E.2d 514 (1943).
Statute of limitations.
- This statute excepts an attack on a void judgment from the bar of the statute of limitation. Watson v. Watson, 235 Ga. 136, 218 S.E.2d 863 (1975).
Statutes of limitation have no application to this class of judgments, and there can be no bar, estoppel, or limitation as to the time when a void judgment may be attacked. Wasden v. Rusco Indus., Inc., 233 Ga. 439, 211 S.E.2d 733 (1975), overruled on other grounds, Murphy v. Murphy, 263 Ga. 280, 430 S.E.2d 749 (1993).
Section refers to judgments void on their face.
- It is the accepted rule that a domestic judgment cannot be called into question in a collateral proceeding, except for defects apparent on the face of the record such as would render the proceedings void. Owenby v. Stancil, 190 Ga. 50, 8 S.E.2d 7 (1940).
Judgment taken against the state without the state's consent is a nullity since the state as sovereign cannot be sued without the state's consent. Thompson v. Continental Gin Co., 73 Ga. App. 694, 37 S.E.2d 819 (1946).
Judicial review of General Assembly's internal procedures.
- If in the exercise of its power to enact laws, the General Assembly fails to observe certain rules of internal procedure, the judiciary would not be authorized to review such action, and the same would be true as to any action of the officers of that body within the sphere of their jurisdiction. Thompson v. Talmadge, 201 Ga. 867, 41 S.E.2d 883 (1947).
Void judgment may be attacked at any time.
- If the judgment or record showed that the court rendering the judgment did not have jurisdiction of the subject matter, any person whose rights would be affected could, at any time, make the objection. Hackenhull v. Westbrook, 53 Ga. 285 (1874); Jones v. Jones, 181 Ga. 747, 184 S.E. 271 (1936); Drake v. Drake, 187 Ga. 423, 1 S.E.2d 573 (1939); Morrison v. Morrison, 212 Ga. 48, 90 S.E.2d 402 (1955).
Void judgment may be attacked at any time and anywhere because the judgment is absolutely void. Even when the issue is not raised by counsel in the trial court and is raised for the first time in the petition for certiorari to the superior court, if the judgment shows on the judgment's face that the judgment is void, the judgment may be attacked. Parker v. Bond, 47 Ga. App. 318, 170 S.E. 331 (1933).
It is not necessary to take any steps to have a void judgment reversed, vacated, or set aside. But whenever it is brought up against the party, that party may assail its pretensions and show its worthlessness. It is supported by no presumptions, and may be impeached in any action, direct or collateral. Shotkin v. State, 73 Ga. App. 136, 35 S.E.2d 556 (1945), cert. denied, 329 U.S. 740, 67 S. Ct. 56, 91 L. Ed. 638 (1946).
Failure to traverse the entry of service or to plead to the jurisdiction will not preclude the defendant from seeking, in an equitable action, to have the judgment set aside when the record shows on the record's face that the court was without jurisdiction of the person of the defendant. Ivey v. State Mut. Ins. Co., 200 Ga. 835, 38 S.E.2d 601 (1946).
Void judgments may be disregarded. Blood v. Earnest, 217 Ga. 642, 123 S.E.2d 913 (1962).
Motion to set aside judgment not necessary prerequisite.
- It is not necessary that heirs at law who were not bound by the judgment of probate in solemn form first move to set aside the judgment in the court of ordinary (probate court) before resorting to equity to cancel a judgment alleged to be void. Foster v. Foster, 207 Ga. 519, 63 S.E.2d 318 (1951).
Affidavit of illegality.
- Unless a judgment is void, an affidavit of illegality is never the proper method to attack the judgment. Ayers v. Baker, 216 Ga. 132, 114 S.E.2d 847 (1960).
Pleading meritorious defenses.
- In equitable proceedings to set aside a judgment rendered in a court of law on account of accident, mistake, or fraud, the plaintiff is required to set out a meritorious defense to the action in which the plaintiff seeks to set aside the judgment. This does not mean that, in a direct equitable proceeding to set aside a judgment of a court of ordinary (now probate court) or a court of law on the ground that such court or courts had no jurisdiction of the subject-matter or of the person, and that the judgment is void, it is necessary to plead a meritorious defense. Foster v. Foster, 207 Ga. 519, 63 S.E.2d 318 (1951).
Reversal on reviewing court's own motion.
- When the Court of Appeals discovers from the record that a judgment brought for review is void for any reason, it will of its own motion reverse it. Troup County Bd. of Comm'rs v. Public Fin. Corp., 109 Ga. App. 547, 136 S.E.2d 509 (1964).
Proper judgment not subject to attack.
- While the judgment of a court having no jurisdiction of the person against whom the judgment is rendered may be void, when the court has jurisdiction of the subject matter and the defendant has been served, the defendant cannot attack the judgment by affidavit of illegality. Hamilton v. Chitwood, 37 Ga. App. 393, 140 S.E. 518 (1927).
When the court has jurisdiction of the subject-matter and the defendant has been served, the defendant cannot attack the judgment by affidavit of illegality. Mason v. Stevens Whse. Co., 43 Ga. App. 375, 158 S.E. 631 (1931).
Contemner may not collaterally attack the judgment of a court in the main case in connection with which the contemner is cited for contempt, when the court has jurisdiction of the person and the subject matter of the main case. But this rule does not apply if the record in the main case shows on the record's face that the court does not have jurisdiction. Bradley v. Simpson, 59 Ga. App. 844, 2 S.E.2d 238, rev'd on other grounds, Simpson v. Bradley, 189 Ga. 316, 5 S.E.2d 893 (1939), cert. denied, 310 U.S. 643, 60 S. Ct. 1105, 84 L. Ed. 1410 (1940).
Trial court properly dismissed a business' contribution action, filed pursuant to O.C.G.A. § 51-12-32, on subject matter jurisdiction grounds as: (1) the court's finding that the business was the sole tortfeasor barred the action; (2) that finding was not void; (3) no appeal was taken from that finding; and (4) the suit amounted to an improper collateral attack on the default judgment entered against the business. State Auto Mut. Ins. Co. v. Relocation & Corporate Hous. Servs., 287 Ga. App. 575, 651 S.E.2d 829 (2007), cert. denied, 2008 Ga. LEXIS 163 (Ga. 2008).
Void judgment not basis for res judicata or estoppel.
- Judgment void for want of jurisdiction does not afford any ground for applying res judicata or estoppel. Wilbanks v. Bowman, 212 Ga. 809, 96 S.E.2d 255 (1957).
When claimant waited unreasonable time to contest.
- Contention that a judgment was erroneous because the claimant waited an unreasonable length of time to contest the judgment's validity does not constitute an attack upon the jurisdiction of the superior court either as to the person or the subject matter, and accordingly the judgment of the superior court is a valid and binding judgment, never having been set aside or reversed. Bentley v. Buice, 102 Ga. App. 101, 115 S.E.2d 706 (1960).
Want of service.
- Any judgment of any sort by counsel or by the court may be attacked if the judgment is void for want of service and of jurisdiction, which depends on service, as to the person. McBride v. Bryan, 67 Ga. 584 (1881); Wade v. Watson, 133 Ga. 608, 66 S.E. 922 (1909); Strickland v. Willingham, 49 Ga. App. 355, 175 S.E. 605 (1934); Winn v. Armour & Co., 184 Ga. 769, 193 S.E. 447 (1937); Cherry v. McCutchen, 68 Ga. App. 682, 23 S.E.2d 587 (1942); Abner v. Weeks, 91 Ga. App. 682, 86 S.E.2d 727 (1955); Dunn v. Dunn, 221 Ga. 368, 144 S.E.2d 758 (1965); Holloway v. Frey, 130 Ga. App. 224, 202 S.E.2d 845 (1973); Henry v. Hiwassee Land Co., 246 Ga. 87, 269 S.E.2d 2 (1980).
When there is no valid service or any waiver of such service, the trial court has no jurisdiction over a person, and the court's judgment is a nullity. Gaddis v. Dyer Lumber Co., 168 Ga. App. 334, 308 S.E.2d 852 (1983).
Judgment binding until set aside.
- When the record shows an entry of service by the sheriff, the judgment is binding until such entry is traversed and set aside. Winn v. Armour & Co., 184 Ga. 769, 193 S.E. 447 (1937).
Judgment of a court having jurisdiction of both the parties and the subject matter, however irregular or erroneous, is binding until set aside. Bentley v. Buice, 102 Ga. App. 101, 115 S.E.2d 706 (1960).
Invalidity establishable by showing deficiency in service of process.
- Once it becomes established that service is in fact deficient because the copy of process left with the defendant in a civil action is not dated or signed by the officer serving the process, the judgment is void, but, until such facts have been established, the judgment is not void in the sense and under the definition of void judgments contained in subsection (a) of Ga. L. 1967, p. 226, §§ 26, 27, and 30 (see now O.C.G.A. § 9-11-60). Jennings v. Davis, 92 Ga. App. 265, 88 S.E.2d 544 (1955).
Suspending or vacating judgment merely to let in defense.
- When a party has been afforded an opportunity to be heard, the court cannot suspend or vacate the court's judgment merely to let in a defense which should have been offered before the judgment was entered. Buchanan v. Treadwell, 213 Ga. 154, 97 S.E.2d 705 (1957).
Judgment obtained by fraud void.
- Since a judgment obtained by fraud is void, such a judgment will be open to attack, whenever and wherever the judgment may come in conflict with the rights or interests of third persons who are not subject to estoppel. Crawford v. Williams, 149 Ga. 126, 99 S.E. 378 (1919).
Superior court may set aside as void the judgment of a court of ordinary (now probate court) when an allegation of fact in a petition to the court, which was necessary to give the court jurisdiction, was known by the petitioner to be false, and therefore was a fraud upon the court. Henderson v. Hale, 209 Ga. 307, 71 S.E.2d 622 (1952).
Cited in Jowers & Son v. Kirkpatrick Hdwe. Co., 21 Ga. App. 751, 94 S.E. 1044 (1918); Wadley S. Ry. v. Wright, 31 Ga. App. 289, 120 S.E. 551 (1923); Walker v. Hall, 176 Ga. 12, 166 S.E. 757 (1932); Gray v. Riley, 47 Ga. App. 348, 170 S.E. 537 (1933); Shiflett v. Dobson, 180 Ga. 23, 177 S.E. 681 (1934); Nixon v. L.A. Russell Piano Co., 51 Ga. App. 399, 180 S.E. 743 (1935); Walker v. Walker, 53 Ga. App. 769, 187 S.E. 164 (1936); Kerr v. McAnally, 183 Ga. 365, 188 S.E. 687 (1936); Hunter v. Associated Mtg. Cos., 183 Ga. 506, 188 S.E. 700 (1936); Gullatt v. Slaton, 189 Ga. 758, 8 S.E.2d 47 (1940); Durden v. Durden, 191 Ga. 404, 12 S.E.2d 305 (1940); Langston v. Nash, 192 Ga. 427, 15 S.E.2d 481 (1941); Head v. Waldrup, 193 Ga. 165, 17 S.E.2d 585 (1941); Harrison v. Tonge, 67 Ga. App. 54, 19 S.E.2d 535 (1942); Hardison v. Gledhill, 72 Ga. App. 432, 33 S.E.2d 921 (1945); Hall v. Hall, 203 Ga. 656, 47 S.E.2d 806 (1948); Gaither v. Gaither, 205 Ga. 572, 54 S.E.2d 600 (1949); Chambers v. Chambers, 206 Ga. 796, 58 S.E.2d 814 (1950); Powell v. Powell, 207 Ga. 1, 59 S.E.2d 718 (1950); Lott v. Lott, 207 Ga. 34, 59 S.E.2d 912 (1950); Jue v. Joe, 207 Ga. 119, 60 S.E.2d 442 (1950); Ivy v. Ferguson, 82 Ga. App. 600, 62 S.E.2d 191 (1950); Georgia R.R. & Banking v. Redwine, 208 Ga. 261, 66 S.E.2d 234 (1951); Porter v. Employers Liab. Ins. Co., 85 Ga. App. 497, 69 S.E.2d 384 (1952); Lockhart v. Lockhart, 211 Ga. 482, 86 S.E.2d 297 (1955); Cocke v. Truslow, 91 Ga. App. 645, 86 S.E.2d 686 (1955); Trowbridge v. Dominy, 92 Ga. App. 177, 88 S.E.2d 161 (1955); Eagan v. First Nat'l Bank, 212 Ga. 212, 91 S.E.2d 499 (1956); Buchanan v. Treadwell, 213 Ga. 154, 97 S.E.2d 705 (1957); Farmer v. Whitehead, 95 Ga. App. 520, 98 S.E.2d 145 (1957); Musgrove v. Musgrove, 213 Ga. 610, 100 S.E.2d 577 (1957); Thompson v. Central of Ga. Ry., 98 Ga. App. 228, 105 S.E.2d 508 (1958); Dupree v. Turner, 99 Ga. App. 332, 108 S.E.2d 171 (1959); Curtis v. Curtis, 215 Ga. 367, 110 S.E.2d 668 (1959); New Amsterdam Cas. Co. v. Thompson, 100 Ga. App. 677, 112 S.E.2d 273 (1959); Nuckolls v. Merritt, 216 Ga. 35, 114 S.E.2d 427 (1960); Brewton v. McLeod, 216 Ga. 686, 119 S.E.2d 105 (1961); Waldor v. Waldor, 217 Ga. 496, 123 S.E.2d 660 (1962); Allen v. Allen, 218 Ga. 364, 127 S.E.2d 902 (1962); Saborit v. Welch, 108 Ga. App. 611, 133 S.E.2d 921 (1963); Trammell v. Trammell, 220 Ga. 293, 138 S.E.2d 562 (1964); U.S. Fid. & Guar. Co. v. Dunbar, 112 Ga. App. 102, 143 S.E.2d 663 (1965); Edwards v. Lampkin, 112 Ga. App. 128, 144 S.E.2d 119 (1965); Ferguson v. Hunt, 221 Ga. 728, 146 S.E.2d 756 (1966); Armstrong Cork Co. v. Joiner, 221 Ga. 789, 147 S.E.2d 317 (1966); Frady v. Frady, 222 Ga. 184, 149 S.E.2d 324 (1966); Byrd v. Byrd, 223 Ga. 24, 153 S.E.2d 422 (1967); International Ladies Garment Workers Union v. Smith, 223 Ga. 459, 156 S.E.2d 71 (1967); Corder v. Fulton Nat'l Bank, 223 Ga. 524, 156 S.E.2d 452 (1967); Byrd v. Moore Ford Co., 116 Ga. App. 292, 157 S.E.2d 41 (1967); Funderburg v. Wold, 117 Ga. App. 638, 161 S.E.2d 376 (1968); Burson v. Bishop, 117 Ga. App. 602, 161 S.E.2d 518 (1968); Orange County Trust Co. v. Takowsky, 119 Ga. App. 366, 166 S.E.2d 913 (1969); Kazakos v. Soteres, 120 Ga. App. 258, 170 S.E.2d 50 (1969); Sutton v. Hutchinson, 226 Ga. 99, 172 S.E.2d 663 (1970); Berry v. Consumer Credit, 124 Ga. App. 586, 184 S.E.2d 694 (1971); Lowndes County v. Dasher, 229 Ga. 289, 191 S.E.2d 82 (1972); Aiken v. Bynum, 128 Ga. App. 212, 196 S.E.2d 180 (1973); First Fid. Ins. Corp. v. Busbia, 128 Ga. App. 485, 197 S.E.2d 396 (1973); Trapnell v. Smith, 131 Ga. App. 254, 205 S.E.2d 875 (1974); Adams Drive, Ltd. v. All-Rite Trades, Inc., 136 Ga. App. 703, 222 S.E.2d 174 (1975); Dennis v. McCrary, 237 Ga. 605, 229 S.E.2d 367 (1976); Thoni Oil Co. v. Tinsley, 140 Ga. App. 887, 232 S.E.2d 162 (1977); Jordan v. Ford Motor Credit Co., 141 Ga. App. 280, 233 S.E.2d 256 (1977); Unigard Ins. Co. v. Kemp, 141 Ga. App. 698, 234 S.E.2d 539 (1977); Wilson v. Passmore, 240 Ga. 716, 242 S.E.2d 124 (1978); Webb v. National Disct. Co., 148 Ga. App. 313, 251 S.E.2d 163 (1978); Safe-Lite Mfg., Inc. v. C.E. Morgan Bldg. Prods., Inc., 150 Ga. App. 172, 257 S.E.2d 19 (1979); O'Neill v. Western Mtg. Corp., 153 Ga. App. 151, 264 S.E.2d 691 (1980); Lovell v. Service Concept, Inc., 154 Ga. App. 760, 269 S.E.2d 894 (1980); Medlin v. Church, 157 Ga. App. 876, 278 S.E.2d 747 (1981); Albitus v. F & M Bank, 159 Ga. App. 406, 283 S.E.2d 632 (1981); Brant v. Bazemore, 159 Ga. App. 659, 284 S.E.2d 674 (1981); Anderson v. King, 160 Ga. App. 802, 288 S.E.2d 231 (1982); McDonnell v. Episcopal Diocese, 191 Ga. App. 174, 381 S.E.2d 126 (1989); King Cotton, Ltd. v. Powers, 200 Ga. App. 549, 409 S.E.2d 67 (1991); Lewis v. Jarvis, 207 Ga. App. 246, 427 S.E.2d 596 (1993); Georgia Ports Auth. v. Hutchinson, 209 Ga. App. 726, 434 S.E.2d 791 (1993); Anderson Anesthesia, Inc. v. Anderson, 333 Ga. App. 437, 776 S.E.2d 647 (2015); Brock v. RES-GA SCL, LLC, 340 Ga. App. 194, 796 S.E.2d 914 (2017).
Jurisdiction
Lack of jurisdiction always avoids judgment.
- Lack of jurisdiction or power in a court entering a judgment always avoids the judgment, especially as the judgment relates to and affects the rights of other parties; such action is a usurpation of power by the court and may be declared void collaterally without any direct proceedings to revise the judgment. Royal Indem. Co. v. Mayor of Savannah, 209 Ga. 383, 73 S.E.2d 205 (1952); Canal Ins. Co. v. Cambron, 240 Ga. 708, 242 S.E.2d 32, cert. denied, 439 U.S. 805, 99 S. Ct. 61, 58 L. Ed. 2d 98 (1978).
Effect of proceedings when court without jurisdiction.
- When judge's order shows on the order's face a total lack of jurisdiction, the judgment is wholly void and may be attacked collaterally. Rogers v. Toccoa Power Co., 161 Ga. 524, 131 S.E. 517, 44 A.L.R. 534 (1926).
Proceedings in court when the court has no jurisdiction of the subject matter are nullities; and a judgment, after the case has been dismissed upon demurrer for lack of jurisdiction of the subject matter, awarding compensation to receivers and their attorneys, is null and void. Deans v. Deans, 164 Ga. 162, 137 S.E. 829 (1927).
Judgment of a court without jurisdiction of the parties is void and may be attacked at any time and in any court where such judgment is attempted to be enforced. Jones v. Jones, 181 Ga. 747, 184 S.E. 271 (1936); Hagan v. Hagan, 209 Ga. 313, 72 S.E.2d 295 (1952).
Judgment of a court without jurisdiction of the subject matter or of the parties, or which is otherwise beyond the power and authority of the court to render in the particular case, is void. Allen v. Baker, 188 Ga. 696, 4 S.E.2d 642 (1939); Williams v. Fuller, 244 Ga. 846, 262 S.E.2d 135 (1979).
When the court rendering judgment had no jurisdiction or power to give it any retroactive effect, its action in attempting to do so was a nullity; and such action, being therefore void, is subject to collateral attack by any one whose rights are affected thereby, whenever and wherever asserted. Royal Indem. Co. v. Mayor of Savannah, 209 Ga. 383, 73 S.E.2d 205 (1952).
When allegations show that the judgment under attack is void, it is "sufficient cause" for relief in a court of equity. Nuckolls v. Merritt, 216 Ga. 35, 114 S.E.2d 427 (1960).
Judgment founded upon a suit in a court which had no jurisdiction of the person of the defendant is void, unless the defendant waived jurisdiction or appeared and pled to the merits. Roland v. Shelton, 106 Ga. App. 581, 127 S.E.2d 497 (1962).
Judgments and decrees void for want of the court's jurisdiction to render them may be set aside at any time after rendition thereof. Baker v. Baker, 221 Ga. 332, 144 S.E.2d 529 (1965).
Judgment in personam rendered without notice.
- Judgment in personam, rendered against a defendant without notice to the defendant or an appearance by the defendant, is without jurisdiction and is entirely void. Weaver v. Webb, Galt & Kellogg, 3 Ga. App. 726, 60 S.E. 367 (1980); Strickland v. Willingham, 49 Ga. App. 355, 175 S.E. 605 (1934).
Court's duty to ascertain jurisdiction.
- It is the duty of any judicial tribunal to first ascertain whether or not the tribunal has jurisdiction of the parties and subject matter involved in the controversy, and a court which has general jurisdiction over the subject matter involved will be presumed, when the judgment is regular on the judgment's face, not to have exceeded the judgment's jurisdiction. Churchwell Bros. Constr. Co. v. Archie R. Briggs Constr. Co., 89 Ga. App. 550, 80 S.E.2d 212 (1954).
It is the duty of the court, when apprised that the court has no jurisdiction, to dismiss the case at any stage of the proceeding, with or without motion therefor. Griffis v. Griffis, 229 Ga. 587, 193 S.E.2d 620 (1972).
It is the duty of a court to inquire into the court's jurisdiction, upon the court's own motion when there is doubt. Culwell v. Lomas & Nettleton Co., 145 Ga. App. 519, 244 S.E.2d 61, rev'd on other grounds, 242 Ga. 242, 248 S.E.2d 641 (1978).
Presumption as to finding of jurisdiction.
- When the question as to the jurisdiction of the court depends upon the existence or nonexistence of a fact, and the judgment is otherwise regular, and the court otherwise a court of competent jurisdiction, it is to be presumed that the court found facts to exist such as warranted the court assuming jurisdiction, and such finding of fact cannot be collaterally attacked. Churchwell Bros. Constr. Co. v. Archie R. Briggs Constr. Co., 89 Ga. App. 550, 80 S.E.2d 212 (1954).
Res judicata.
- Trial court erred in granting a limited liability company summary judgment in the company's ejectment action against a property owner on the ground of res judicata under O.C.G.A. § 9-12-40 because there remained a question of fact regarding whether the owner was a party to the prior action; the owner asserted and presented affidavit evidence supporting the claim that the trial court in the quiet title action lacked personal jurisdiction over the owner, thus creating a genuine issue of material fact regarding whether the owner was a party to the earlier litigation. James v. Intown Ventures, LLC, 290 Ga. 813, 725 S.E.2d 213 (2012).
In personam jurisdiction not present after service by publication.
- There is no provision whereby courts may acquire jurisdiction over a defendant through service by publication and then render an in personam judgment against the defendant. Tapley v. Proctor, 150 Ga. App. 337, 258 S.E.2d 25 (1979).
In order for the court to bind nonresidents by the court's judgments in personam there must be personal service or waiver of personal service upon such nonresidents. This requirement has not been changed by the enactment of Ga. L. 1972, p. 689, §§ 1-3 (see now O.C.G.A. § 9-11-4). Tapley v. Proctor, 150 Ga. App. 337, 258 S.E.2d 25 (1979).
Effect of jurisdiction appearing on face of proceedings.
- Whenever jurisdiction appears on the face of the proceedings upon which the judgment is rendered, everything will be intended in favor of the judgment; but when nothing appears on the face of the proceedings to give the court jurisdiction, as required by law, either of the subject-matter or the parties thereto, the whole proceeding is void. Gray v. McNeal, 12 Ga. 424 (1853).
Effect of irregularities after jurisdiction has attached.
- When judgments may have been erroneous, but were not void and no exception to the judgements were taken, the judgments are binding on the parties. Girardey v. Bessman, 77 Ga. 483 (1886).
An irregular judgment is one that is entered contrary to the manner of practice and procedure allowed by law in some material respect; when jurisdiction is once attached, errors or irregularities in the proceedings, although they may render the judgment erroneous and subject to be set aside in a proper proceeding for that purpose, will not render the judgment void. Rowell v. Rowell, 214 Ga. 377, 105 S.E.2d 19 (1958).
When court judgment appointing an administrator for an incompetent's estate was not alleged to be void, the judgment could not be collaterally attacked by a motion to dismiss the writ of error pertaining to a denial of the motion for judgment notwithstanding verdict in a suit by a former ward challenging the disbursements of former guardian. Weekes v. Fuller, 218 Ga. 515, 128 S.E.2d 715 (1962).
Specific Application
1. In General
Compliance with former Code 1933, §§ 81-206 to 81-208 was necessary to give the court in which the divorce proceeding was filed jurisdiction of the case. If, without so complying, the plaintiff proceeded to try the case and the court entered a decree, "such a decree was void, and at the suit of the defendant upon whom service had not been perfected, to have the decree declared void, the decree should be set aside." Homburger v. Homburger, 213 Ga. 344, 99 S.E.2d 213 (1957).
Direct proceeding to set aside probate in solemn form.
- Court of equity may entertain a direct proceeding to set aside a probate in solemn form when it is alleged that certain heirs at law of the testatrix, residents of the state wherein the will was probated, were not served with personal notice of the probate proceedings, did not waive service, and had no knowledge of such proceedings, and it is alleged that the judgment probating the will in solemn form is, as to them, a nullity. Foster v. Foster, 207 Ga. 519, 63 S.E.2d 318 (1951).
Service upon a minority of a church membership is not such service as will bind church property under a judgment against certain individuals who are members of the church. Walker v. Ful-Kalb, Inc., 181 Ga. 563, 183 S.E. 776 (1935).
Service attempted in county other than county of origin.
- Judgment is absolutely void when it appears from the face of the record that suit was instituted in the county of the residence of the endorser of a promissory note, and service upon the maker of the note was attempted by service of a second original in another county. Ivey v. State Mut. Ins. Co., 200 Ga. 835, 38 S.E.2d 601 (1946).
Judgment of another state without jurisdiction may be collaterally attacked. Morrison v. Morrison, 212 Ga. 48, 90 S.E.2d 402 (1955).
Judgment against foreign citizen.
- Courts of this state have no jurisdiction to render a valid judgment against a citizen of another state in a common law action, unless the citizen has been within the limits of this state, and has been served with process while in this state. Howell v. Gordon, 40 Ga. 302 (1869).
Judgment against a lunatic is not void, but voidable. John Doe v. Roe, 23 Ga. 168 (1857).
Judgment upon sane person later declared insane. After the defendant was duly served in person with a copy of the petition and process at a time when the defendant was sane, a default judgment thereafter rendered against the defendant was not void because in the meantime the defendant was adjudged to be a lunatic and committed, and was not represented in such suit by a guardian or guardian ad litem. Burkhalter v. Virginia-Carolina Chem. Co., 42 Ga. App. 312, 156 S.E. 272 (1930).
Persons non compos mentis.
- When a non compos mentis person was sued upon what purported to be a contractual obligation entered into by that person, and was served only by the leaving of a copy of the petition and process at the person's residence, and was not represented in the suit by any guardian or other person appointed to look after the person's interests, a judgment rendered against the person in the suit was capable in a proper proceeding brought in the person's behalf of being set aside as invalid. Perry v. Fletcher, 46 Ga. App. 450, 167 S.E. 796 (1933).
An insane person may, after time for excepting to the judgment has expired, institute, by next friend, in the court in which the judgment was rendered, proceedings in the nature of a motion to set aside the judgment as being void. Perry v. Fletcher, 46 Ga. App. 450, 167 S.E. 796 (1933).
When no notice was given to the plaintiff in the lunacy proceeding and the court of ordinary (now probate court) did not have personal jurisdiction of the plaintiff, the appointment of a guardian is subject to attack by the plaintiff that the appointment was a nullity and void. Tucker v. Tucker, 221 Ga. 128, 143 S.E.2d 639 (1965).
When invalidity not shown on face of record.
- Invalidity of a judgment which is invalid because of irregularities in the copy of process served on the defendant not appearing on the face of the record when a proper entry of service, complete and regular on its face, is made on the original process filed in the office of the clerk, then establishment of its invalidity becomes a question of fact which can be raised only by a traverse to the return of the officer, and until this is done, such a judgment is not void under the definition of void judgments. Jennings v. Davis, 92 Ga. App. 265, 88 S.E.2d 544 (1955).
When judge exceeds jurisdiction.
- Judgment of a judge who exceeds the judge's jurisdiction as a whole will be void and a mere nullity. Cornett v. Ault, 124 Ga. 944, 53 S.E. 460 (1906).
Trial court's order denying the defendant's extraordinary motion for new trial/habeas petition was a nullity and void under O.C.G.A. § 9-12-16, and the appellate court could not transfer the defendant's case to the Georgia Supreme Court to consider the grant of a certificate of probable cause under O.C.G.A. § 9-14-52(b), even though the Georgia Supreme Court had exclusive jurisdiction over habeas cases, as the trial court was without subject matter jurisdiction to entertain the defendant's habeas claim upon a transfer from a habeas court with instructions to determine whether trial counsel was ineffective; however, as defendant's habeas claims had not been addressed by a court of competent jurisdiction, the appellate court remanded the matter to the habeas court for resolution of the defendant's habeas claims of ineffective assistance of counsel, with the final order subject to the appellate procedures outlined in § 9-14-52. Herrington v. State, 265 Ga. App. 454, 594 S.E.2d 682 (2004).
Justice of the peace cannot set aside own judgment.
- Justice of the peace has no authority to set aside a judgment rendered by the justice of the peace. The subsequent entering of a second judgment purporting to set aside the first mentioned judgment is itself void and should be treated as a nullity. Edwards & Daniel v. Edwards, 163 Ga. 825, 137 S.E. 244 (1927).
Attacking judgment as void in attachment case.
- It is claimant's right to attack as void a judgment rendered in an attachment case by showing that there has never been a legal levy of the attachment itself. New England Mtg. Sec. Co. v. Watson, 99 Ga. 733, 27 S.E. 160 (1896).
Garnishment affidavit not reciting jurisdictional fact renders judgment void. National Lumber Co. v. Turner, 2 Ga. App. 750, 59 S.E. 15 (1907).
Homestead granted without notice to creditor.
- In the court of ordinary (now probate court), a homestead granted without notice to a certain creditor, is a nullity as to that creditor. Weekes & Son v. Edwards, 101 Ga. 314, 28 S.E. 853 (1897).
Fact that an execution was issued on a void judgment and levied does not give vitality to the judgment. Jowers & Son v. Kirkpatrick Hdwe. Co., 21 Ga. App. 751, 94 S.E. 1044 (1918).
Void reinstatement of case.
- Consent of counsel in vacation to reinstatement of a cause which has been dismissed in term time will not serve to confer jurisdiction upon the court, nor vitalize a judgment rendered after such void reinstatement, and which for that very reason is void. Owens v. Cocroft, 14 Ga. App. 322, 80 S.E. 906 (1914).
Judgment and appointment of a guardian was a nullity when the record shows the applicants in a proceeding involving the validity of a will attempted to waive the ten day notice and the court proceeded to declare the testatrix incompetent and appointed a guardian for the testatrix in two days without complying with the law. English v. Shivers, 220 Ga. 737, 141 S.E.2d 443 (1965).
Discharge obtained by an executor by means of fraud practiced upon the legatees or the ordinary (now probate judge) is void. Pass v. Pass, 98 Ga. 791, 25 S.E. 752 (1896).
Grant of letters of administration is not void when there is a will on file at the time of the grant in the office of the ordinary (now probate judge) which is subsequently admitted to probate. Smith v. Scarborough, 182 Ga. 157, 185 S.E. 105 (1936).
Judgment appointing a person administrator de bonis non.
- When citation has not issued and been advertised, the judgment appointing a person administrator de bonis non is a nullity, and can be collaterally attacked in any proceeding in which the judgment or letters of administration issued thereon are relied upon as establishing the legal appointment of an administrator, when this affirmatively appears from the record introduced to establish the appointment. Davis v. Melton, 51 Ga. App. 685, 181 S.E. 300 (1935).
Jurisdiction for challenge to municipal charter law.
- Municipal courts have no jurisdiction of prosecution for violation of state statute setting forth charter of municipality. Sentence imposed by a municipal court for violation of such statute is void and subject to collateral attack. Rose v. Mayor of Thunderbolt, 89 Ga. App. 599, 80 S.E.2d 725 (1954).
County board of commissioner's order void.
- Settlement agreement entered into by a county and the county's board of commissioners was void as an ultra vires act because the agreement purported to forever bind the hands of future boards of commissioners regarding land use and zoning decisions for certain property in violation of O.C.G.A. § 36-30-3(a) and a trial court therefore had jurisdiction to nullify the agreement at any time. Buckhorn Ventures, LLC v. Forsyth County, 262 Ga. App. 299, 585 S.E.2d 229 (2003).
Effect of invoking arbitration.
- Fact that a taxpayer who objected to an assessment invoked arbitration would not estop the taxpayer from attacking an award in equity as void. Montgomery v. Suttles, 191 Ga. 781, 13 S.E.2d 781 (1941).
Party absent due to illness but represented by counsel.
- When a party receives notice of a trial or hearing, and an attorney appears for the party and participates therein, and a judgment is rendered against the party, the fact that the court or forum had notice of the party's sickness will not render the judgment void, and as such subject to attack under this section; it is the duty of such party to "follow up" on the party's case and by proper procedure to attack the judgment upon some meritorious showing that, although represented by the attorney, the party's absence prejudiced some substantial right or prevented the party from testifying upon some matter vital to the party's right of recovery or defense, or in any event, not to ignore the adverse judgment by failing to appeal or take a writ of error to the proper court. Thomas v. Travelers Ins. Co., 53 Ga. App. 404, 185 S.E. 922 (1936).
Foreclosure judgment as to car.
- Failure to provide a corporation that was the original owner of a car with notice of a foreclosure proceeding involving the car was a due process violation that was tantamount to a lack of personal jurisdiction; thus, the foreclosure judgment was void under O.C.G.A. § 9-12-16. Mitsubishi Motors Credit of Am., Inc. v. Sheridan, 286 Ga. App. 791, 650 S.E.2d 357 (2007), cert. denied, No. S07C1842, 2007 Ga. LEXIS 751 (Ga. 2007).
Judgment of judge appointed to fill vacancy not void.
- Judgment entered by a judge, who was appointed by the chief county magistrate judge upon a request for "assistance" made by the superior court chief judge pursuant to O.C.G.A. § 15-1-9.1, was not void, even though the judge was appointed to fill a vacancy created by the resignation of a superior court judge, which vacancy should have been filled by the governor. Dominguez v. Enterprise Leasing Co., 197 Ga. App. 664, 399 S.E.2d 269 (1990).
Section inapplicable when judgment at issue was not a void judgment.
- Trial court properly denied a motion to correct a judgment entered against two debtors and their guarantors, five years and eight months after the expiration of the term of court in which the judgment was entered, as they failed to show any entitlement to relief or exception as to why they could not have timely sought the relief requested, and O.C.G.A. § 9-12-16 did not apply because there was no issue regarding the trial court's original jurisdiction and because the judgment at issue was not a void judgment. De La Reza v. Osprey Capital, LLC, 287 Ga. App. 196, 651 S.E.2d 97 (2007), cert. denied, No. S07C1928, 2007 Ga. LEXIS 819 (Ga. 2007).
Trial court erred in setting aside consent decree.
- Trial court erred in finding that a consent judgment was void due to impossibility of performance or lack of mutuality and in denying the sellers' motion for judgment instanter on the consent judgment because the purchasers accepted the risk that the purchasers would be unable to complete the road on time per the agreement and set up an alternative method of compliance, namely, the payment of money to the sellers. Kothari v. Tessfaye, 318 Ga. App. 289, 733 S.E.2d 815 (2012).
2. Domestic Issues
Void judgment no defense to enforcement of valid judgment of alimony.
- Judgment which purported to modify permanent alimony judgment but which was void for want of power or jurisdiction in the court to grant the judgment, constituted no defense to the plaintiff's action to collect the amount awarded for the support of the child in the original proceeding, payment of which had not been made and was in arrears at the time the suit was filed. Buxton v. Hooker, 214 Ga. 271, 104 S.E.2d 437 (1958).
Want of jurisdiction of party in divorce case.
- Judgment granting to the wife a divorce and permanent alimony was not void either because she resumed cohabitation with her husband after the suit was filed, or because of the fact that pending the action she made an agreement with her husband, which she did not disclose in court, to the effect that she would not claim alimony (which facts, so far as they may have furnished any grounds of defense, should have been urged before judgment, or in a proper proceeding to set it aside) and the court did not err in excluding evidence of such facts in a contempt proceeding brought against the husband for his failure to pay alimony as required by the decree. Rozetta v. Rozetta, 181 Ga. 494, 182 S.E. 847 (1935).
While the power to enforce a decree for alimony by attachment for contempt by judges of the superior courts is still adequate, if in such a proceeding it appears that the judgment awarding alimony is void, for any reason, the husband is privileged to collaterally attack the judgment, and in such case the court has no power to punish him for contempt. Allen v. Baker, 188 Ga. 696, 4 S.E.2d 642 (1939).
In an original suit in equity for a decree declaring void and of no effect verdicts and decree in a divorce suit, on grounds that the court was without jurisdiction of the case, because at the time of filing of the suit for divorce the defendant was a resident of Clayton County, whereas the suit was brought in Fulton County, the alleged want of jurisdiction was a sufficient ground of attack upon the verdicts and decree of divorce. Haygood v. Haygood, 190 Ga. 445, 9 S.E.2d 834 (1940).
Award of temporary alimony by a court not having jurisdiction of the parties cannot be the basis of a valid proceeding for contempt. Hagan v. Hagan, 209 Ga. 313, 72 S.E.2d 295 (1952).
Since no valid judgment can be rendered in a divorce case if the court is without jurisdiction, it is the duty of the court, when apprised of the fact that the court has no jurisdiction, to dismiss the case at any stage of the proceeding, with or without motion therefor. Cohen v. Cohen, 209 Ga. 459, 74 S.E.2d 95 (1953).
When it appears upon the face of the record that the court was without jurisdiction of a divorce case the judgment was void ab initio; and being void the defendant would not be guilty of contempt of court for failing to pay alimony awarded by that judgment. Johnson v. Johnson, 222 Ga. 433, 150 S.E.2d 684 (1966).
Consequence of failing to take exception to decree.
- When decree awarding permanent alimony for support of a minor child was based on the verdict which a jury rendered in a divorce and alimony suit and was not excepted to, it therefore became absolute and the court is without power or jurisdiction to modify the decree's terms, even with the consent of the child's parents. Buxton v. Hooker, 214 Ga. 271, 104 S.E.2d 437 (1958).
Notice to minor children in support action.
- To arbitrarily discriminate against the child or children, and set apart for the widow alone the entire net proceeds of an insolvent estate, and give the minor child no notice of such action, is so unreasonable and contrary to law as to void such judgment. De Jarnette v. De Jarnette, 176 Ga. 204, 167 S.E. 526 (1933).
Failure to comply with interlocutory appeal procedures.
- Trial court's denial of a wife's motion to vacate was affirmed because the husband's filing of a notice of appeal without first complying with the requirements for obtaining interlocutory review had no legal effect and, therefore, did not deprive the trial court of jurisdiction to consider the husband's motion for reconsideration or from entering a modification order. Islamkhan v. Khan, 299 Ga. 548, 787 S.E.2d 731 (2016).
RESEARCH REFERENCES
Am. Jur. 2d.
- 46 Am. Jur. 2d, Judgments, §§ 22 et seq., 29.
C.J.S.- 49 C.J.S., Judgments, § 22 et seq.
ALR.
- Is service of notice or process in proceeding to vacate or modify judgment to be made upon owner of judgment or upon the attorney, 78 A.L.R. 370.
Right to attack consent judgment or decree on ground that it was not within scope of pleadings or was beyond the jurisdiction of the court, 86 A.L.R. 84.
Attack on judgment because of invalidity of contract on which it was rendered, 95 A.L.R. 1267.
Nonparty who acquires interest in property pending action or after judgment as within benefit of statute or rule providing for opening, vacating, or setting aside of judgments, 104 A.L.R. 697.
Mental incompetency at time of rendition of judgment in civil action as ground of attack upon it, 140 A.L.R. 1336.
Lapse of time as bar to action or proceeding for relief in respect of void judgment, 154 A.L.R. 818.
Extraterritorial effect of provision in decree of divorce as to custody of child, 160 A.L.R. 400.
Remedy available against invalid judgment in favor of United States, state, or other governmental unit immune to suit, 163 A.L.R. 244.
Constructive service of process in action against nonresident to set aside judgment, 163 A.L.R. 504.
Foreign divorce decree as subject to attack by spouse in state of which neither spouse is resident, 12 A.L.R.2d 382.
Setting aside default judgment for failure of statutory agent on whom process was served to notify defendant, 20 A.L.R.2d 1179.
Collateral attack on domestic nunc pro tunc judgment, 70 A.L.R.2d 1131.
Appealability of void judgment or of one granting or denying motion for vacation thereof, 81 A.L.R.2d 537.
Who, other than natural or adopting parents, or heirs of latter, may collaterally attack adoption decree, 92 A.L.R.2d 813.
Power of successor judge taking office during term time to vacate, set aside, or annul judgment entered by his or her predecessor, 51 A.L.R.5th 747.