Opinion
17589.
ARGUED SEPTEMBER 12, 1951.
DECIDED OCTOBER 3, 1951. REHEARING DENIED NOVEMBER 16, 1951.
Divorce, etc. Before Judge Vaughn. DeKalb Superior Court. July 9, 1951.
Marvin O'Neal Jr., and E. H. Stanford, for plaintiff in error.
E. C. Harvey Jr., contra.
1. "The courts of this State have no extra-territorial jurisdiction, and cannot make the citizens of foreign States amenable to their process, or conclude them by a judgment in personam, without their consent." Dearing v. The Bank of Charleston, 5 Ga. 497 (5); Hood v. Hood, 130 Ga. 610, 612 ( 61 S.E. 471); Gordy v. Levison Co., 157 Ga. 670, 677 ( 122 S.E. 234); Hood Brick Co. v. Mangham, 161 Ga. 457, 459 ( 131 S.E. 172); Irons v. American National Bank, 178 Ga. 160, 179 ( 172 S.E. 629); Grimmett v. Barnwell, 184 Ga. 461, 462 ( 192 S.E. 191, 116 A.L.R. 257); Webb Martin v. Anderson-McGriff Hardware Co., 188 Ga. 291, 296 ( 3 S.E.2d 882).
2. While "a person not a citizen of this State, passing through or sojourning temporarily in the State, may be sued in any county thereof in which he may be at the time when sued" (Code, § 3-206; Murphy v. Winter Co., 18 Ga. 690), this rule has no application in the present case, where the petition shows upon its face that the mother and child are residents of the State of Ohio and were located in Ohio at the time the petition for modification was filed.
3. "If a defendant shall appear and plead to the merits, without pleading to the jurisdiction, and without excepting thereto, he shall thereby admit the jurisdiction of the court." Code, § 81-503; White v. North Ga. Electric Co., 139 Ga. 587, 588 (3) ( 77 S.E. 789); Waters v. Waters, 167 Ga. 389, 390 (6) ( 145 S.E. 460). "Parties by consent, express or implied, cannot give jurisdiction to the 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; but not so as to prejudice third persons." Raney v. McRae, 14 Ga. 589 (4) (60 Am. D. 660); Adams v. Lamar, 8 Ga. 83 (3); Ponce v. Underwood, 55 Ga. 601; Yon v. Baldwin, 76 Ga. 769; Block v. Henderson, 82 Ga. 23, 25 ( 8 S.E. 877); Stevens v. Nisbet, 88 Ga. 456 ( 14 S.E. 711); Rosenthal v. Langley, 180 Ga. 253, 260 ( 179 S.E. 383); Langston v. Nash, 192 Ga. 427, 429 (2) ( 15 S.E.2d 481); Black v. Milner Hotels, 194 Ga. 828, 831 ( 22 S.E.2d 780).
4. In the present case, the petition having alleged that the wife and minor child were residents of the State of Ohio, the jurisdiction of the court was properly raised by general demurrer. "Where the want of jurisdiction over the person is apparent upon the face of the bill, it should be taken advantage of by demurrer." Kendrick v. Whitfield, 20 Ga. 379 (3); Mullally v. Mullally, 199 Ga. 708, 709 (2) ( 35 S.E.2d 199). The wife not having waived jurisdiction of the court by a voluntary appearance without pleading to the jurisdiction of the court, the trial court did not err in sustaining the general demurrer and dismissing the action. The case of King v. King, 202 Ga. 838 ( 44 S.E.2d 791), is not in point on its facts, and does not support the contention of the plaintiff in error that the court in the present instance had jurisdiction. In the King case the father of the child was still a resident of the county in which the divorce decree had been rendered and the child was in the custody of the father. The court in the King case had jurisdiction of the person of the defendant and of the child who was the subject matter of the petition, which facts are not true in the present case.
Judgment affirmed. All the Justices concur.
No. 17589. ARGUED SEPTEMBER 12, 1951 — DECIDED OCTOBER 3, 1951 — REHEARING DENIED NOVEMBER 16, 1951.
A divorce decree on the petition of the wife, with both parties having the right to remarry, was rendered in 1943. Alimony, property rights, and the custody of a minor child were fixed by a written agreement, which was made the judgment of the court. After fixing alimony for the support of the child and awarding custody to the mother, the decree provided in part: "In the event of the remarriage of plaintiff, defendant shall have the right to apply to the court for custody of the child on the ground that it would be to the advantage of the child for his custody to be so awarded."
In May, 1951, the father filed an action styled in the divorce cause, in which the decree in the former action was set forth, and it was alleged: The mother has remarried, her present husband being V. W. Shaner, and she has "moved beyond the limits of Georgia and out of the jurisdiction of this honorable court." (Paragraph 2.) (The words, "and out of the jurisdiction of this honorable court," were stricken by amendment.) The father sent funds for the support of the child until February 15, 1951. The intent of the decree was that the child would not be removed from the State of Georgia, the father would be allowed reasonable visitations to the child, and funds for its support would not be diverted to any other use. The intention of the decree has been violated, in that the child has been removed beyond the State, which action is in violation of the laws of Georgia, a contravention of the public policy of the State, and not to the best interest of the child. The father has been denied reasonable visitations "because it [the child] is now in the State of Ohio and not accessible." (Paragraph 7b.) The mother has not considered the best interest of the child. She has forced it to adopt the name of its stepfather, and has denied it knowledge of its true paternal parent by telling the child that it is the son of her present husband. She has diverted funds of the child to the use of her present husband. The mother's actions are violations of the decree, and are changes in conditions materially affecting the welfare and well-being of the child. She is not a fit and proper person to have custody of the child.
The prayers were for a rule nisi, that complete custody of the minor child be awarded to the father, that the decree be modified and revised accordingly, that the provision for alimony be abated, and that the rule nisi, when issued, be served upon the attorney of record for the former wife in the divorce action.
Service of the rule and motion was made upon E. C. Harvey Jr., as attorney for the former wife. The mother filed a general demurrer on the ground that "said petition does not as a whole, nor do any of its several counts, paragraphs or parts, show a cause of action against plaintiff."
The trial judge sustained the general demurrer and dismissed the motion for custody by the father. The exception is to that judgment.