2021 Georgia Code
Title 9 - Civil Practice
Chapter 10 - Civil Practice and Procedure Generally
Article 2 - Venue
Part 1 - General Provisions
§ 9-10-33. Action Against Nonresident Found in State

A person who is not a citizen of this state, passing through or sojourning temporarily in the state, may be subject to an action in any county thereof in which he may be found at the time when the action is brought.

(Orig. Code 1863, § 3318; Code 1868, § 3339; Code 1873, § 3416; Code 1882, § 3416; Civil Code 1895, § 4954; Civil Code 1910, § 5531; Code 1933, § 3-206.)

- Personal jurisdiction over nonresident generally, § 9-10-90.

- For article discussing aspects of third party practice (impleader) under the Georgia Civil Practice Act, see 4 Ga. St. B.J. 355 (1968). For comment on White v. Henry, 232 Ga. 64, 205 S.E.2d 206 (1974), see 26 Mercer L. Rev. 317 (1974).

This section applies to actions by creditors against foreign executors. Johnson v. Jackson, 56 Ga. 326, 21 Am. R. 285 (1876) (see O.C.G.A. § 9-10-33).

Section applicable to nonresident voluntarily attending city court to answer to accusation for misdemeanor against the nonresident. Rogers v. Rogers, 138 Ga. 803, 76 S.E. 48 (1912) (see O.C.G.A. § 9-10-33).

If nonresident abandons his wife in this state, bill by her for alimony will lie against him if he is found and served in any county of this state. Campbell v. Campbell, 67 Ga. 423 (1881).

This section is applicable to foreign corporations. Williams v. East Tenn., V. & Ga. Ry., 90 Ga. 519, 16 S.E. 303 (1892) (see O.C.G.A. § 9-10-33).

This section applies where contract of insurance was made in state, but company maintained no agency here. Equity Life Ass'n v. Gammon, 119 Ga. 271, 46 S.E. 100 (1903) (see O.C.G.A. § 9-10-33).

This section relates to venue rather than jurisdiction over the person. McPherson v. McPherson, 238 Ga. 271, 232 S.E.2d 552 (1977) (see O.C.G.A. § 9-10-33).

- This section has no application where the petition shows upon its face that the mother and child were residents of the state of Ohio and were located in Ohio at the time the petition for modification of custody decree was filed. Gates v. Shaner, 208 Ga. 454, 67 S.E.2d 569 (1951) (see O.C.G.A. § 9-10-33).

- The legal perfection of service by personal service of action upon a citizen of another state constitutes the institution of action against him, and the court has jurisdiction over him. Minsk v. Cook, 48 Ga. App. 567, 173 S.E. 446 (1934).

- A person not a citizen, and temporarily sojourning in this state, may be sued in any county in which he may be found at the time he is sued, for the jurisdiction of this state extends to "citizens, denizens, or temporary sojourners." Cheeley v. Fujino, 131 Ga. App. 41, 205 S.E.2d 83 (1974).

- The temporary presence of a nonresident tortfeasor in state is not such residence within the meaning of state Constitution as will authorize joining, in action against him in the county where he is found and served, other joint tortfeasors who reside in a different county or counties of this state. Benton Rapid Express v. Johnson, 202 Ga. 597, 43 S.E.2d 667 (1947).

- Even though the allegations showed that the defendant was a resident of a foreign jurisdiction, yet where he was personally served with process while sojourning within county in which the court was located, where the petitioner resided, the court acquired jurisdiction under this section, O.C.G.A. § 50-2-21, and Ga. Const. 1983, Art. VI, Sec. II, Para. I. Miller v. Miller, 216 Ga. 535, 118 S.E.2d 85 (1961).

Where defendant voluntarily appears to defend criminal charge against the defendant, the defendant is liable to action as others are, and must answer thereto in like manner, but it would seem that one who did not voluntarily appear, but was forced into the state, would not be liable to action. Lomax v. Lomax, 176 Ga. 605, 168 S.E. 863 (1933).

Nonresident witness or suitor in attendance upon trial of any case in court is exempt from service of any writ or summons while so attending, and in going to or returning from the court. Ewing v. Elliott, 51 Ga. App. 565, 181 S.E. 123 (1935).

- The privilege of exemption from service is not only assured while a nonresident is attending upon strictly judicial proceedings, but upon any tribunal whose business has reference to or is intended to affect judicial proceedings. Ewing v. Elliott, 51 Ga. App. 565, 181 S.E. 123 (1935).

Exemption extends to every person who in good faith attends as witness any proceeding where testimony is to be taken, according to the practice of the courts, to be used in establishing the rights of a party in any judicial proceeding. Ewing v. Elliott, 51 Ga. App. 565, 181 S.E. 123 (1935).

- Hearings before arbitrators, legislative committees, registers and commissioners in bankruptcy, and examiners and commissions to take depositions, are all embraced within the scope of application of the rule of nonresident immunity from service. Ewing v. Elliott, 51 Ga. App. 565, 181 S.E. 123 (1935).

- If a person is present in a county other than that of the person's residence for the sole purpose of attending the taking of depositions in a case to which the person is a party, and advantage is taken of the person's presence to serve process on the person in another action and to compel the person to defend it in a jurisdiction other than that of the person's residence, the service of such process should be quashed. Ewing v. Elliott, 51 Ga. App. 565, 181 S.E. 123 (1935).

- In order for a nonresident to be immune from process under the rule of exemption, the nonresident's main and controlling purpose in coming into this state must have been for the purpose of taking the depositions; this is the meaning of the term "good faith" when used in connection with this rule of exemption. Ewing v. Elliott, 51 Ga. App. 565, 181 S.E. 123 (1935).

- Where there is pending in the state of Florida an action of A against B, and, by stipulation of counsel for both parties, B comes into this state solely for the purpose of taking depositions, B is exempt from service of civil process while taking such depositions and during a reasonable time going and coming, even though the attorney for B testified that the purpose of taking the depositions was to make opposing counsel believe that B would not be present at the trial of action in Florida and there was no intention to use the depositions. Ewing v. Elliott, 51 Ga. App. 565, 181 S.E. 123 (1935).

- A corporation is for some purposes a citizen, and, if present, is no less subject to jurisdiction than any other citizen of another state; in addition, a corporation, though a citizen of but one state, may also be a resident of other states. Louisville & N.R.R. v. Meredith, 66 Ga. App. 488, 18 S.E.2d 51 (1941), aff'd, 194 Ga. 106, 21 S.E.2d 101 (1942).

- The true test of jurisdiction is not residence or nonresidence of the plaintiff, or the place where the cause of action originated, but whether the defendant can be found and served in the jurisdiction where the cause of action is asserted; and a corporation can be found in any jurisdiction where it transacts business through agents located in that jurisdiction. Aiken Asphalt Paving Co. v. Winn, 133 Ga. App. 3, 209 S.E.2d 700 (1974).

- Court had personal jurisdiction over the company and the agent since when a nonresident was found within the State of Georgia, O.C.G.A. § 9-10-33 provided the courts with a basis for personal jurisdiction independent from the long-arm statute. Because the agent was served with process while physically present within the state, the exercise of personal jurisdiction would comport with due process. Carrier v. Jordaan, 714 F. Supp. 2d 1204 (S.D. Ga. 2008).

- In an action against a trucking company, venue was proper in the county in which the company had its registered office; even though the company's registered agent had moved out of state, documents filed with the Secretary of State reflected that the registered office remained in that county, and service could be made in the absence of the registered agent by mail addressed to the registered office. Rock v. Ready Trucking, Inc., 218 Ga. App. 774, 463 S.E.2d 355 (1995).

- Legal service may be perfected on a defendant railroad corporation which does business in this state, (i.e., has tracks in the state) by serving its soliciting freight agent who has an office in the county in which action is filed and service perfected, although the defendant does no business in the county other than that of the soliciting of freight. Louisville & N.R.R. v. Meredith, 66 Ga. App. 488, 18 S.E.2d 51 (1941), aff'd, 194 Ga. 106, 21 S.E.2d 101 (1942).

Cited in Murphy v. John S. Winter & Co., 18 Ga. 690 (1855); Whitman v. McClure, 51 Ga. 590 (1874); Williams v. East Tenn., V. & Ga. Ry., 90 Ga. 519, 16 S.E. 303 (1892); Georgia Creosoting Co. v. Moody, 41 Ga. App. 701, 154 S.E. 294 (1930); De Loach v. Southeastern Greyhound Lines, 49 Ga. App. 662, 176 S.E. 518 (1934); Locke v. Locke, 221 Ga. 603, 146 S.E.2d 273 (1965); Edwards v. Edwards, 227 Ga. 307, 180 S.E.2d 358 (1971); Padgett v. Penland, 230 Ga. 824, 199 S.E.2d 210 (1973); White v. Henry, 232 Ga. 64, 205 S.E.2d 206 (1974); Howerton v. Garrett, 237 Ga. 371, 228 S.E.2d 786 (1976); Williams v. Parnell, 162 Ga. App. 573, 292 S.E.2d 425 (1982); Summer-Minter & Assocs. v. Phillips, 171 Ga. App. 528, 320 S.E.2d 376 (1984).

RESEARCH REFERENCES

C.J.S.

- 92A C.J.S., Venue, § 91.

- Power of court, in exercise of discretion, to refuse to entertain action for nonstatutory tort occurring in another state or country, 32 A.L.R. 6; 48 A.L.R.2d 800.

Suits and remedies against alien enemies, 137 A.L.R. 1361; 147 A.L.R. 1309; 148 A.L.R. 1386; 149 A.L.R. 1454; 152 A.L.R. 1451; 153 A.L.R. 1418; 153 A.L.R. 1419; 155 A.L.R. 1451; 156 A.L.R. 1448; 157 A.L.R. 1449.

Independent venue requirements as to cross complaint or similar action by defendant seeking relief against a codefendant or third party, 100 A.L.R.2d 693.

Forum non conveniens doctrine in state court as affected by availability of alternative forum, 57 A.L.R.4th 973.