Mayson v. Malone, 178 S.E.2d 806 (Ga. Ct. App. 1970). · Go Syfert
Search
Mayson v. Malone, 178 S.E.2d 806 (Ga. Ct. App. 1970). Cases Citing This Book View Copy Cite
35 citation events across 2 distinct courts.
Strongest positive: Hooper v. Taylor (gactapp, 1998-01-08)
Treatment trajectory · 1974 → 2026 · click a year to view as-of
1974 2000 2026
Top citers, strongest first. 6 distinct citers.
cited Cited as authority (rule) Hooper v. Taylor
Ga. Ct. App. · 1998 · confidence medium
Mayson v. Malone, 122 Ga. App. 814, 815 ( 178 SE2d 806 ).
cited Cited as authority (rule) Guy v. Roberson
Ga. Ct. App. · 1994 · confidence medium
Mayson v. Malone, 122 Ga. App. 814, 815 ( 178 SE2d 806 ).
cited Cited as authority (rule) Laff Lines, Ltd. v. DiMauro
Ga. Ct. App. · 1988 · confidence medium
Mayson v. Malone, 122 Ga. App. 814, 815 ( 178 SE2d 806 ).
discussed Cited as authority (rule) Franklin v. Collins
Ga. Ct. App. · 1982 · confidence medium
“However, the grant of a motion to set aside a judgment, like the grant of a motion for new trial, leaves the case still pending in the court below and thus is not a final judgment.” Mayson v. Malone, 122 Ga. App. 814, 815 ( 178 SE2d 806 ) (1970).
discussed Cited "see" In re L. B. B. (2×)
Ga. Ct. App. · 1982 · signal: see · confidence high
See Mayson v. Malone, 122 Ga. App. 814, 815 ( 178 SE2d 806 ).
discussed Cited "see" Johnson v. Barnes (2×)
Ga. · 1976 · signal: see · confidence high
See Mayson v. Malone, 122 Ga. App. 814 (2) ( 178 SE2d 806 ) (1970).
MAYSON, Transferee
v.
MALONE Et Al.
45664.
Court of Appeals of Georgia.
Nov 13, 1970.
178 S.E.2d 806
James L. Mayson, for appellant., Jones, Bird & Howell, Ruth H. Gershon, for appellees.
Quillian, Bell, Whitman.
Cited by 17 opinions  |  Published
Quillian, Judge.

Appellees (defendants below) filed what they denominate "a motion to set aside default judgment” which sought to attack a judgment rendered against them on January 8, 1963. The motion was predicated on the ground that neither defendant was personally served and that the return of service showed it to be insufficient and improper. On the hearing of this motion, the order of the trial judge recited "upon hearing evidence and upon argument of counsel,” there was no valid process and the default judgment was void. Accordingly, the judgment of January 8, 1963, was vacated and set aside in its entirety. The appellant (plaintiff below) brings this appeal and[*815] contends that the motion was barred by the statute of limitation. Held:

Argued September 9, 1970 Decided November 13, 1970. James L. Mayson, for appellant. Jones, Bird & Howell, Ruth H. Gershon, for appellees.

1. "A judgment void because of lack of jurisdiction of the person or subject-matter may be attacked at any time.” Code Ann. § 81A-160 (f) (Ga. L. 1966, pp. 609, 662; 1967, pp. 226, 239, 240). Where there is lack of personal service the three-year limitation contained in Code Ann. § 81A-160 is not applicable. This is in accordance with the law prior to the Civil Practice Act. See Strickland v. Willingham, 49 Ga. App. 355, 357 (175 SE 605); Buchan v. Williamson, 131 Ga. 501 (3) (62 SE 815).

2. The appellees make a motion to dismiss the instant appeal on the grounds that it is not a final judgment and is premature. There was no certificate by the trial judge as provided in Code Ann. § 6-701 (a 2) (Ga. L. 1965, p. 18; 1968, pp. 1072, 1073). Of course, the denial of a motion to set aside and vacate a judgment is final and appealable. Farr v. Farr, 120 Ga. App. 762 (172 SE2d 158). However, the grant of a motion to set aside a judgment, like the grant of a motion for new trial, leaves the case still pending in the court below and thus is not a final judgment. Finch v. Kilgore, 120 Ga. App. 320 (170 SE2d 304). See also in this connection Watson v. Parke, Davis & Co., 117 Ga. App. 162 (159 SE2d 446), decided prior to the 1968 amendment to the Appellate Practice Act. The appeal is premature and must be dismissed.

Appeal dismissed.

Bell, C. J., and Whitman, J., concur.