1. The form of the verdict rendered by the jury is in precise accord with that prescribed in the court's instructions for a finding against the nonresident defendant only and constitutes a finding in favor of the resident defendant.
2. The motion in arrest of judgment on the ground that the court had no jurisdiction over the person of the nonresident defendant need not allege that such lack of jurisdiction has not been waived under such circumstances as appear in this case.
3. The appearance of the nonresident defendant and his plea to the merits in the first instance did not constitute a waiver of jurisdiction over his person.
4. The resident defendant in whose favor judgment was rendered need not be a party to the proceeding by the nonresident codefendant seeking to arrest the judgment against himself, and need not be served with notice thereof.
5. The court did not err in granting the nonresident defendant motion in arrest of judgment.
The case proceeded to trial on May 15, 1959, before a jury, which returned the following verdict: "We, the jury, find in favor of the plaintiff against defendant, James Addison Bell, Jr. in the amount of $25,000. (signed) D. C. Bolt, Foreman." The court thereupon entered its judgment as follows: "Whereupon, it is considered and adjudged by the court that the plaintiff recover of the defendant, Bell, the sum of $25,000, principal, together with -------- cost, in this proceeding. This ---- day of May, 1959. (signed) John W. Davis, J. S. C. L. M. J. C." Within the time provided by law, defendant Bell filed his motion in arrest of judgment alleging in substance that the court was without jurisdiction to enter a judgment against him and praying that said judgment be arrested. A rule nisi was issued and service was perfected on the plaintiff Morris, who subsequently filed a demurrer and an answer to the motion in arrest of judgment. On May 29, 1959, the court passed the following order: "The judgment rendered in the above styled case on May 16, 1959, is hereby amended as follows: 1. By adding the following words, to wit: Judgment is rendered in favor of the defendant, Betty S. Cochran. 2. By inserting the numerals '16th' where the blank space appears for the date in said judgment. This May 29th, 1959. (signed) John W. Davis, J. S. C. L. M. C." On the same date the court overruled the plaintiff's demurrer to the motion in arrest of judgment and granted said motion by the following order: "Upon consideration and after argument of counsel the within motion is hereby sustained and the judgment complained of is arrested as prayed. This 29th May 1959. (signed) John W. Davis, J. S. C. L. M. J. C."
To the orders of the court sustaining the motion in arrest of judgment and overruling his demurrer, the plaintiff excepts.
1. If the verdict of the jury constitutes a finding in favor of the resident defendant, the court could no longer retain jurisdiction over the nonresident defendant Bell to enter a judgment against him. For it is well settled law in this State that, where a single suit is brought against two joint tortfeasors in a county where one of them is a resident, and where the other resides outside the county, and, where on the trial of the case, the resident defendant is found not liable by the jury, and the nonresident defendant is found liable, the court is without jurisdiction to enter judgment against the nonresident defendant. Southeastern Truck Lines v. Rann, 214 Ga. 813
, 815 (108 S. E. 2d 561) and cases cited. Burger v. Noble, 81 Ga. App. 759
, 761 (59 S. E. 2d 761).
2. The plaintiff next contends that his demurrer to the motion in arrest of judgment should have been sustained because it is not alleged therein that there had been no waiver of jurisdiction of the person of the defendant Bell, the movant. This motion is made under the provisions of Code 110-702: "When a judgment has been rendered, either party may move in arrest thereof, or to set it aside for any defect not amendable which appears on the face of the record or pleadings." Where, as here, there is nothing on the face of the record or pleadings to indicate a waiver of jurisdiction over the person of the nonresident defendant, there is no necessity to allege a lack of such waiver in a motion made by such defendant pursuant to the statute. The court did not err in overruling the plaintiff's demurrer to the motion in arrest of judgment.
3. It is further contended that irrespective of the allegations of the motion, the record conclusively shows that the nonresident defendant did waive jurisdiction as to his person by pleading to the merits without filing a special plea to the jurisdiction as provided in Code 81-503. "Obviously, this Code section cannot apply to a defendant such as the one here in the first instance, for he must appear and plead to the merits and stand before the court until the codefendant is discharged. The appearance of the defendant and his plea to the merits in the first instance, therefore, did not constitute a waiver under this Code section." Burger v. Noble, 81 Ga. App. 759
, 761, supra. See also Warren v. Rushing, 144 Ga. 612
(87 S. E. 775); Jordan v. Charles S. Martin Distributing Co., 90 Ga. App. 186
(82 S. E. 2d 263); Christian v. Terry, 36 Ga. App. 815 (2)
(138 S. E. 244).
The above rule, which represents the settled law in this State, is contradicted by the following language in Davis v. Waycross Coca Cola Bottling Co., 60 Ga. App. 390, 394 (3 S. E. 2d 863): "It would seem, in a suit jointly against a resident defendant and a nonresident defendant, where the jurisdiction of the court as to the person of the nonresident defendant is dependent on whether he is a joint tortfeasor or a joint obligor with the resident defendant, that an appearance by the nonresident defendant and pleading to the merits, without pleading to the jurisdiction of the court as to his person on the ground that he is a nonresident and is not a joint tortfeasor or joint obligor with the resident defendant, would be a waiver of jurisdiction and a submission to the jurisdiction. The court would have jurisdiction to render a legal and valid judgment against him, notwithstanding he might not in fact have been a joint tortfeasor or joint obligor with the resident defendant, and notwithstanding it might be adjudicated in the case by the verdict and the judgment that the resident defendant was not liable and that therefore the two defendants were not joint tortfeasors or joint obligors." This statement is contrary to the decisions cited in this division of the opinion and is an incorrect view of the law, but need not be overruled since it is mere obiter, for the decision in the case is predicated on a waiver by conduct of counsel in open court rather than by pleading to the merits. In the instant case, there was no action by the nonresident defendant or his counsel which constitutes a waiver of the court's lack of jurisdiction over his person.
4. Finally, the plaintiff contends that the resident codefendant was an essential party to the motion in arrest of judgment and should have been given notice as required by law. "All motions to arrest or set aside a judgment must be made to the court by whom such judgment was rendered, and of such motions the opposite party must have reasonable notice." Code 110-707. It should first be observed that the motion by its very terms seeks to arrest the judgment only as to the nonresident defendant and does not seek to arrest the judgment favorable to this codefendant. "Generally, it is true, a judgment has been regarded as an entirety, and setting it aside as to one co-party has been treated as vacating it as to the rest. But there is nothing in the nature of the thing which involves such a consequence; and in modern Georgia practice a new trial can be granted as to one joint defendant and denied as to others; so too, a judgment can be as completely moulded at law as can be a decree in equity. The operation of moulding may take place in cutting down or expunging, no less than by original construction or shaping." Powell v. Perry, 63 Ga. 417, 421. This is not a case in which the movant seeks to set aside the entire judgment as in Sewell v. Anderson, 197 Ga. 623 (30 S. E. 2d 102), and Malone v. Kelly, 101 Ga. 194 (28 S. E. 689), cited by the plaintiff. The resident defendant has no interest in sustaining the operation of the judgment against her codefendant, and her rights are not affected by the grant of the motion. Therefore, she need not be a party to the proceeding in arrest and need not be served with notice thereof as an "opposite party". See Carmichael v. City of Jackson, 194 Ga. 664, 670 (22 S. E. 2d 470).
5. The resident defendant not having been found liable by the jury and the nonresident defendant not having waived the lack of jurisdiction over his person, the court did not err in granting the latter's motion in arrest of judgment.
Judgment affirmed. Quillian and Nichols, JJ., concur.