Bailey v. Williams, 20323

• Decision Date: 06 February 1959
• Docket Number: No. 20323,20323
• Citation: 214 Ga. 702,107 S.E.2d 209
• Parties: W. J. BAILEY v. W. Morgan WILLIAMS, Jr., Administrator, et al.
• Court: Georgia Supreme Court

Page 209

107 S.E.2d 209

214 Ga. 702

W. J. BAILEY v. W. Morgan WILLIAMS, Jr., Administrator, et al.

No. 20323.

Supreme Court of Georgia.

Feb. 6, 1959.

Syllabus by the Court

For reasons stated in the opinion, the Superior Court of Hart County was without jurisdiction of the petition; and the trial court properly sustained the general demurrer thereto based on that ground.

In June 1956, W. J. Bailey conveyed to W. Morgan Williams and Thomas Irwin his one-eighth undivided interest in a tract of land in Hart County. On July 13, 1956, Williams and Irwin filed in the Superior Court of Hart County a petition for partition of the land against others owning interests in said land. Williams was a resident of Franklin County, and Irwin was a resident of Habersham County. After the partition proceeding had progressed to the point that the land had been sold at public sale, under court order, but before confirmation of the sale by the court, Bailey, on April 12, 1957, filed an equitable petition in the Superior Court of Hart County seeking to have the deed from him to Williams and Irwin canceled on the ground that he had been fraudulently induced to sign the deed; and alleging that Williams had executed a second deed to Irwin conveying his one-half interest in seven-eighths of all of said land to secure a loan of $1,400; that this was a cloud on his title and should be canceled, and seeking to restrain Williams and Irwin from further proceeding with the partition proceeding. Bailey was not a party to the partition proceeding, but on August 15, 1957, filed objections thereto. The defendants' demurrers to the equitable petition as amended, on the ground that the Superior Court of Hart County lacked jurisdiction, and their pleas to the jurisdiction, were sustained. The exception is to those judgments.

J. T. Sisk, Elberton, for plaintiff in error.

A. S. Skelton, Hartwell, Clete D. Johnson, Royston, Marshall L. Allison, Lavonia, for defendant in error.

MOBLEY, Justice.

Article 6, section 14, paragraph 3, of the Constitution of Georgia of 1945 provides: 'Equity cases shall be tried in the county where a defendant resides against whom substantial relief is prayed.' Code (Ann.) § 2-4903. Code (Ann.) § 3-202 adds to this provision, '* * * except in cases of injunctions to stay pending proceedings, when the petition may be filed in the county where the proceedings shall be pending, provided no relief is prayed as to matters not included in such litigation.' The plaintiff contends that the Superior Court of Hart County has jurisdiction under this Code section. Since this is an exception to the constitutional requirement, it must be strictly construed. Home Mixture Guano Co. v. Woolfolk, 148 Ga. 567, 573, 97 S.E. 637. If it sought to confer jurisdiction generally in a county other than that of the residence of a defendant against whom substantial relief is prayed, it would be in conflict with the Constitution. 'The exception stated * * * can be upheld only on the theory of waiver; that is, that where a party institutes a proceeding in a county other than that of his residence, against a person residing in such county, he submits himself, to the extent of such suit, to the equitable jurisdiction of the superior court of the county in which the suit is brought.' Crawley v. Barge, 132 Ga. 96, 98, 63 S.E. 819, 820.

The waiver as to the nonresident's person is limited to relief germane to and involved in the action which he starts. Thomason v. Thompson, 129 Ga. 440, 445, 59 S.E. 236, 26 L.R.A.,N.S., 536.

In Carswell v. Macon Manufacturing Co., 38 Ga. 403, 406, 407, it is pointed out that this court in very early cases cited, prior to enactment of the constitutional and statutory provisions on this question, established that '* * * equity causes must be brought in a county where a defendant resides against whom substantial relief is prayed,' and that '* * * this rule does not apply to bills ancillary to suits at law, as for discovery, injunction, etc. In such causes, so far as the bill is merely defensive, and seeks no relief outside of the suit pending, the county where the suit is pending has jurisdiction * * * So far as such bills are thus confined, we hold they may be brought in the county where the suit is pending. If they seek other relief, become aggressive, instead of simply defensive, they are, so far, demurrable. This bill seeks only to enjoin the common law suit in Bibb; it asks no relief...