Where the defendant corporation improperly raises the issue of lack of service in a suit against it, while at the same time appearing and obtaining a favorable ruling on its demurrer as to venue jurisdiction, objections pertaining to service are waived. If after such waiver the plaintiff dismisses his action in one county and within six months from the dismissal institutes suit against the defendant on the same cause of action in the proper county, the provisions of Code 3-808 will apply, and the latter action will not be barred by the statute of limitation.
On May 5, 1960, Kermit J. Chance sued the Planters Rural Telephone Cooperative, Inc., in the amount of $5,000 for services rendered by Chance to the corporation. The action was brought in the City Court of Millen and the return of service recited: "To the defendant upon whom this petition is served: This copy of petition and process was served upon you by leaving a copy at the office of Planters Electric Membership Corporation, the office in which the Planters Rural Telephone Cooperative, Inc., had their office in 1956. This the 6th day of May, 1960."
To the petition the defendant corporation filed its plea to the jurisdiction, alleging that the defendant did not reside in Jenkins County but was a resident of Screven County, and its demurrers, both general and special. The applicable portions of the general demurrers are as follows: that the petition shows on its face the defendant was not a resident of Jenkins County; that the petition did not allege the defendant resided in Jenkins County; that no cause of action was set out; finally, "that said petition shows on its face that it was not served on an officer or agent of the corporation or its place of business or upon any person upon whom service was authorized or in a manner upon which service may be made upon a corporation and in particular upon said defendant."
Afterwards, according to an affidavit included in the record, counsel for the plaintiff wrote opposing counsel a letter stating: "I am of the opinion that Jenkins County cannot be made the venue of the suit, so I am conceding as to your demurrer as to jurisdiction, and am herewith authorizing you to prepare an order for Judge Strickland to sign and dismiss the case for want of jurisdiction in Jenkins County." Pursuant to this letter, the following order issued: "The general demurrer filed by the defendant, Planters Rural Telephone Cooperative, Inc., in said case coming on to be heard, and it appearing to the court that the City Court of Millen is without jurisdiction to hear and determine said cause, it is considered, ordered, and adjudged that said cause be stricken and dismissed from the docket on the ground of jurisdiction only."
The defendant filed its demurrers, which were overruled by the trial court and affirmed by the Court of Appeals in Planters Rural Telephone Cooperative v. Chance, 105 Ga. App. 270 (124 SE2d 300)
, and its answer which admitted the above quoted paragraph 9. Later, on September 8, 1961, a special plea of the statute of limitation was filed. The plea pointed out: that the action was predicated upon a resolution passed by the board of the defendant corporation on August 17, 1956, to the effect that the plaintiff receive compensation for certain services; that the suit filed on February 28, 1961, was more than four years thereafter and would be barred by the statute of limitation; that the first action brought on May 5, 1960, was dismissed by the sustaining of a general demurrer solely on jurisdictional grounds; that the return of service in such suit shows that there was no service at all and that no service was ever perfected upon the defendant; that as a result plaintiff could not recommence his action under Code 3-808 so as to toll the running of the statute of limitation.
The trial judge denied the defendant's motion for summary judgment, granted the plaintiff's motion for summary judgment, and overruled the defendant's special plea of the statute of limitation. On writ of error brought by the defendant, the Court of Appeals reversed the judgment of the trial court, Planters Rural Telephone Cooperative v. Chance, 107 Ga. App. 116 (129 SE2d 384)
, holding that the mere filing of a suit where the return shows there is no proper service does not act to toll the statute of limitation and that the trial judge erred in overruling the defendant's special plea of the statute of limitation. We granted the plaintiff's application for certiorari to review the questions presented.
Harold W. Hollingsworth, for plaintiff in error.
W. Colbert Hawkins, contra.
Code 3-808 provides: "If a plaintiff shall be nonsuited, or shall discontinue or dismiss his case, and shall recommence within six months, such renewed case shall stand upon the same footing, as to limitation, with the original case . . ." Since this is a remedial statute and to be construed liberally, Cox v. Berry, 13 Ga. 306, Rountree v. Key, 71 Ga. 214, this court has held that where venue is improperly laid in the first suit the Code section does not require that the suit shall be renewed in the same court or in the same county, for the section is but a codification of the act of 1847 which allowed the plaintiff to renew in any court having jurisdiction thereof in this State. Cox v. Strickland, 120 Ga. 104, 108 (4) (47 SE 912, 1 AC 870); Lamb v. Howard, 150 Ga. 12 (102 SE 436). "Where the plaintiff begins an action in a court of this State having jurisdiction of the subject-matter, and, after the bar of the statute has attached, the same is dismissed because of a ruling indicating that the court has no jurisdiction of the person, such action may be renewed within six months in another court of this State, having jurisdiction of the person and the subject matter." Atlanta K. &c. R. Co. v. Wilson, 119 Ga. 781 (5) (47 SE 366). Further, the fact that one is involuntarily dismissed rather than voluntarily dismissing his suit is of no consequence so long as the grounds for dismissal do not go to the merits of the case. As was held in Clark v. Newsome, 180 Ga. 97 (178 SE 386): "The law as contained in this section (now Code 3-808) must be construed in conformity with the specific legislative enactments from which it was taken; and when thus interpreted it applies to involuntary as well as voluntary dismissals, where the merits are not adjudicated." See also Greenfield v. Farrell H. & P. Co., 17 Ga. App. 637 (87 SE 912).
On the other hand, the mere filing of the petition will not of itself operate to toll the statute of limitation. For, service is also a vital ingredient. Ferguson v. New Manchester Mfg. Co., 51 Ga. 609; McClendon & Co. v. Hernando Phosphate Co., 100 Ga. 219 (28 SE 152); McFarland v. McFarland, 151 Ga. 9 (105 SE 596). However, in this connection it must be observed that notice to the opposite party is the prime consideration, Cox v. Strickland, 120 Ga. 104, 109-110, supra, Code 81-220, and "appearance and pleading shall be a waiver of all irregularities of the process, or of the absence of process, and the service thereof." Code 81-209.
In Livingston v. Marshall, 82 Ga. 281 (3) (11 SE 542), where the sheriff's entry recited that the defendant is not to be found in the county and the defendant demurred, among others, on the ground that "there is no proper service of the bill," this court held: "That a bill has not been served is not a ground of demurrer to the same." See Savannah, Fla. &c. R. Co. v. Atkinson, 94 Ga. 780, 782 (21 SE 1010); Pryse v. Cutliffe, 57 Ga. App. 548, 550 (195 SE 913). In the instant case, the Court of Appeals held that a motion to dismiss would be the correct method to attack a return which is void on its face, citing Cox v. Potts, 67 Ga. 521, 527, and Bell v. New Orleans &c. R. Co., 2 Ga. App. 812, 816 (59 SE 102), and that it would be pointless to say that the defendant in this case failed to strictly comply with the requisites of a valid attack on service.
A demurrer based upon facts not alleged in the pleading which it attacks is a speaking demurrer. Reid v. Caldwell, 120 Ga. 718 (5) (48 SE 191). Thus, that a defendant "had not been served was not a fact which appeared from the allegations of the petition, and even if such facts were material to the other defendant it could not be taken advantage of by a demurrer to the petition." Miller v. Straus, 38 Ga. App. 781, 782 (145 SE 501), and cases cited. The defendant having appeared and secured a favorable ruling as to venue jurisdiction and having improperly raised the issue of lack of service, it can not be heard to complain at a later time that there was no valid service; for objections pertaining to service had been waived.
With no valid attack made as to want of service, the rule pronounced in Cutliffe v. Pryse, 187 Ga. 51, 55 (200 SE 124), is applicable. "If after such waiver [the waiver being the filing of a plea to the jurisdiction without objecting to the service or want of service] the plaintiff dismisses his action" in one county "and within six months from the dismissal institutes suit against the defendant on the same cause of action" in the proper county, "the provisions of the Code, 3-808 will apply, and the latter action will not be barred by the statute of limitations." Hence, the judgment of the Court of Appeals reversing the trial court must be
Reversed. All the Justices concur.