Ryder Automobile Leasing Company v. Tates Et Al., 112 Ga. App. 18, 143 S.E.2d 411 (1965)
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George G. Finch, John H. Crutchfield, contra.Nall, Miller, Cadenhead & Dennis, Thomas A. Rice, for plaintiff in error.
In an action brought by a resident of Georgia against a resident of Georgia and a Florida corporation jointly, the nonresident defendant can challenge the fact of service on the resident defendant by a traverse to the sheriff's return of service alleging that the resident defendant has not in fact been served with process and, upon showing this fact, the nonresident defendant will have the right to remove the case to Federal court because of diversity of citizenship between it and the plaintiff.
In this negligence action the plaintiff sued an automobile leasing company (hereinafter called Ryder), the lessee of an automobile, and the driver of the leased automobile (hereinafter called Duncan), allegedly an employee of the lessee. The return of service dated June 17, 1963, stated that the defendant Duncan had been served by leaving a copy of the writ and process at his most notorious place of abode in the county. Ryder filed a traverse to the entry of service on Duncan, alleging that Duncan did not reside at the place stated in the return at the time of the purported service and had never been served, had no notice of the suit, and had not appeared therein. The traverse alleged that, since only Ryder had been served with process (the sheriff's return showed that service had not been perfected on the lessee), it would, upon showing that Duncan had not been served, have the right to remove the case to Federal court, because of diversity of citizenship between it and the plaintiff.
The plaintiff filed a motion to strike the traverse on the ground that it was brought not by the defendant Duncan but by a co-defendant. The trial court sustained this ground of the motion to strike and dismissed the traverse. The defendant Ryder assigns error on this judgment.
A civil action of which the United States district courts have original jurisdiction because of diversity of citizenship of the parties "shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought." 62 Stat. 937, 28 U.S.C.A. 1441 (b).
The right of a nonresident defendant under this statute to remove when there is a resident co-defendant who has not been served has not been directly decided. If the plaintiff voluntarily dismisses, discontinues, or in any way abandons the action as to a resident sued jointly with a nonresident, the cause then may be removed by the nonresident defendant. Stamm v. American Tel. & Tel. Co., 129 FSupp. 719, (W.D. Mo. 1955); Lewis v. Producers Coop. Oil Mill, 205 FSupp. 293, 295 (W.D. Mo. 1962); Beglane v. Switzer, 209 FSupp. 849 (W.D. Mo. 1962); Cuyler v. Smith,
In the present case there is no way for the nonresident to establish the fact that there has been no service on the resident defendant except by traversing the return of service. If the resident defendant has not been served, the adjudication of the traverse of service is essential to make the record show this fact and thereby show the nonresident defendant's right of removal. Benton v. Maddox,
Therefore the trial court erred in sustaining the plaintiff's motion to strike and dismissing the defendant's traverse of service.
1965
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