O.C.G.A. § 9-12-41 (2019)

Annotations

JUDICIAL DECISIONS Persons bound by judgments in rem. - Judgment strictly in rem binds only those who could have made them-

selves parties to the proceedings, and those who had notice either actual or constructively by the thing condemned

being first seized into the custody of the court. Elliott v. Adams, 173 Ga. 312, 160 S.E. 336 (1931). When admitting in rem proceeding as evidence improper. - When the plaintiff not having been a party to the in rem proceeding and having no notice thereof, actual or constructive, is not bound by the judgment rendered therein, the trial judge erred in admitting the in rem proceedings and the judgment rendered therein as evidence over the objection of the plaintiff that they were irrelevant and immaterial. Elliott v. Adams, 173 Ga. 312, 160 S.E. 336 (1931). Proceeding under the Land-Registration Act, Ga. L. 1917, p. 108, § 1 (see now O.C.G.A. Art. 2, Ch. 2, T. 44) is, by express words, a proceeding in rem. Rock Run Iron Co. v. Miller, 156 Ga. 136, 118 S.E. 670 (1923). Suit for partition is not a proceeding in rem nor is the final judgment binding on any of the cotenants who are not brought within the jurisdiction of the court by some service of process, either actual or constructive. Childs v. Hayman, 72 Ga. 791 (1884).

Defense of excessive levy. - When a judgment is in rem against a described piece of property, the defense of excessive levy does not lie. Edwards v. Decatur Bank & Trust Co., 176 Ga. 194, 167 S.E. 292 (1932). Effect on property rights. - Proceedings quasi in rem are brought to establish status, and not to set up rights in or title to property; and judgments in such proceedings are not conclusive against third persons as to their rights in, or title to, property when the third parties have no notice or opportunity to assert their rights. Elliott v. Adams, 173 Ga. 312, 160 S.E. 336 (1931). Cited in Carter v. Bush, 216 Ga. 429, 116 S.E.2d 568 (1960); Cureton v. Cureton, 218 Ga. 88, 126 S.E.2d 666 (1962); Carswell v. Cannon, 110 Ga. App. 315, 138 S.E.2d 468 (1964); Save The Bay Comm., Inc. v. Mayor of Savannah, 227 Ga. 436, 181 S.E.2d 351 (1971); Parris v. Slaton, 131 Ga. App. 92, 205 S.E.2d 67 (1974); State Bar v. Beazley, 256 Ga. 561, 350 S.E.2d 422 (1986).

RESEARCH REFERENCES Am. Jur. 2d. - 47 Am. Jur. 2d, Judgments, § 463 et seq. Am. Jur. Pleading and Practice Forms. - 15 Am. Jur. Pleading and Practice Forms, Judgments, § 93. C.J.S. - 50 C.J.S., Judgments, §§ 1382, 1383, 1388. ALR. - Reversal of judgment as affecting another judgment based on the reversed judgment and rendered pending the appeal, 81 ALR 712. Judgment against tort-feasor’s insurer in action by injured person as res judicata in similar action by another person injured in same accident, 121 ALR 890.

Decree of court of domicile respecting validity or construction of will, or admitting it or denying its admission to probate, as conclusive as regards real estate in another state devised by will, 131 ALR 1023. Judgment involving real property against the spouse as binding against other spouse not a party to the proceeding, 58 ALR2d 701. Jurisdiction on constructive or substituted service, in divorce or alimony action, to reach property within state, 10 ALR3d 212.