Smith v. Upshaw

217 Ga. 703 (1962)

124 S.E.2d 751

SMITH et al. v. UPSHAW et al.

21547.

Supreme Court of Georgia.

Argued February 12, 1962.

Decided March 8, 1962.

James R. Venable, Mark Dunahoo, for plaintiffs in error.

Lee Evans, E. Lewis Hansen, Jr., Roy Lambert, contra.

*706 HEAD, Presiding Justice.

1. Where the bylaws of an electric membership corporation require that its board of directors be named from different counties, the office of director in one county is not the same office as that of director in another county. Each is a separate office and they can not properly be joined as respondents in one quo warranto proceeding. Sweat v. Barnhill, 171 Ga. 294 (11) (155 SE 18); Center v. Arp, 198 Ga. 574 (32 SE2d 308).

2. Except as the Constitution may otherwise authorize, all civil cases shall be tried in the county of the defendant's residence. Constitution, Art. VI, Sec. XIV, Par. VI (Code Ann. § 2-4906). While jurisdiction of the person may be *704 waived by appearance and pleading to the merits, parties can not by consent give jurisdiction of the subject matter where the court has none. Kantzipper v. Kantzipper, 179 Ga. 850 (177 SE 679); Mathis v. Rowland, 208 Ga. 571 (67 SE2d 760); Sweatman v. Roberts, 213 Ga. 112 (97 SE2d 320). The superior court in Rockdale County had no jurisdiction of the office of "director" created and existing in a county other than Rockdale. The trial judge properly sustained the motion to dismiss as to such respondents.

3. When the bylaws of a corporation provide the manner of calling special meetings of the stockholders and there is no provision for a stockholder (who is not an officer of the corporation) to act as agent in calling such special meeting, his acts in calling a meeting can not be ratified. "If he cannot act as agent by appointment, he cannot be made an agent by ratification." Harrison v. McHenry, 9 Ga. 164, 170 (2) (52 AD 435); Ozborn v. Woolworth, 106 Ga. 459, 460 (32 SE 581). Ratification by the stockholders (other than the respondents), if otherwise valid, could not operate adversely on the rights of the respondents. "`The doctrine of ratification is not applicable against a person as to an act of one who did not assume to act in his name or under authority from him.' Swicord v. Waxelbaum, 23 Ga. App. 297 (97 SE 891)." Greene v. Golucke, 202 Ga. 494 (2) (43 SE2d 497), and citations. The respondent's demurrer attacking the validity of the purported ratification of the acts of R. V. (Bull) Treadwell in calling the special meeting of the stockholders was properly sustained.

Judgment affirmed. All the Justices concur.