Lester v. Master Charge

141 Ga. App. 593 (1977)

234 S.E.2d 164

LESTER v. MASTER CHARGE et al.

53408.

Court of Appeals of Georgia.

Submitted February 15, 1977.

Decided March 14, 1977.

Ronald Lester, pro se.

John W. Bland, Jr., Lucian Lamar Sneed, for appellees.

MARSHALL, Judge.

On April 9, 1976, the Trust Company of Georgia sued Lester in the State Court of DeKalb County to recover on his Master Charge account, to which suit Lester filed an answer, a counterclaim for injury to his reputation, and a cross claim against Master Charge. On April 19, 1976, Lester filed in DeKalb Superior Court a "petition for removal" of Trust Company's action to that court, based on a lack of jurisdiction in the state court, and also filed a third-party action against Master Charge. On June 16, 1976, the Trust Company's case was sounded for trial in the state court, and there being no appearance for the defendant within three minutes, default judgment was entered for the plaintiff, pursuant to Rule 41 of the Rules of the Superior Courts (Code Ann. § 24-3341) and Code Ann. § 81A-155 (Ga. L. 1966, pp. 609, 659; 1967, pp. 226, 238). Thereafter, on September 30, 1976, the DeKalb Superior Court denied Lester's motion for removal, and dismissed his complaint, from which judgment Lester appeals. Held:

We affirm. At the time the superior court denied the motion for removal of Trust Company's case to that court, there was no longer pending in the State court of DeKalb County, hence subject to "removal," either the case itself or the pleadings filed therein by Lester, by reason of the default judgment's having been entered in favor of Trust Company, which default was never opened. Since the superior court thus never acquired jurisdiction of the case, it follows that it had no jurisdiction of the third-party action filed in superior court. Accordingly, both the denial of the motion for removal and the dismissal of the third-party complaint were required.

Judgment affirmed. Deen, P. J., and Webb, J., *594 concur.