Opinion
29442.
DECIDED FEBRUARY 28, 1942.
Complaint; from Fulton civil court — Judge Hathcock. November 7, 1941.
A. S. Grove, for plaintiff in error.
A defendant can not insist on the jurisdiction of a court to try an issue raised by its cross-action against the plaintiff when it has obtained a dismissal of the plaintiff's action for want of proper service.
DECIDED FEBRUARY 28, 1942.
M. S. Nix instituted an action against the Southern Straw Manufacturing Company to recover for machine parts, labor, and service furnished by the plaintiff. The defendant filed a motion to dismiss the petition because of want of proper service, and at the same time filed a cross-action seeking a judgment against the plaintiff. The court sustained the defendant's motion to dismiss the action for want of proper service and on its own motion dismissed the cross-action. The Southern Straw Manufacturing Company excepted to that part of the order which dismissed the cross-action.
This question has been decided adversely to the contention of the plaintiff in error in Morse v. Turner, 20 Ga. App. 108 (2) ( 92 S.E. 767), in an opinion rendered by Judge Jenkins. Further discussion of the subject seems superfluous, except that it might profitably be stated that the cases cited in Davis v. Berry Schools, 59 Ga. App. 549 ( 1 S.E.2d 602), relating to set-offs germane to an action dismissed on demurrer, are not applicable, because in them we did not have the inconsistent positions of a party as we have in the instant case. The court did not err in dismissing the cross-action, whether it was or was not germane to the petition.
Judgment affirmed. Stephens, P. J., and Sutton, J., concur.