Chamblee Const. Co. v. Pickett

• Decision Date: 18 March 1971
• Docket Number: No. 26336,26336
• Citation: 181 S.E.2d 32,227 Ga. 421
• Parties: CHAMBLEE CONSTRUCTION COMPANY, Inc. v. Roscoe PICKETT et al.
• Court: Georgia Supreme Court

Page 32

181 S.E.2d 32

227 Ga. 421

CHAMBLEE CONSTRUCTION COMPANY, Inc. v.Roscoe PICKETT et al.

No. 26336.

Supreme Court of Georgia.

March 18, 1971.

Syllabus by the Court

The Superior Court of Cobb County did not have jurisdiction of this equitable action wherein the only defendant against whom substantial relief was prayed was a resident of another county.The pending proceeding in Cobb County did not give jurisdiction to the Cobb court since relief was prayed as to matters not included in the pending litigation, and the party bringing the equitable action was not a party in the pending proceeding.

Alex McLennan, Scott Hogg, Atlanta, for appellant.

Glenville Haldi, Edward S. Sams, Atlanta, for appellees.

MOBLEY, Justice.

Roscoe Pickett, Ralph E. Marler, and Leon Paine, Jr., (appellees) brought an equitable action in Cobb Superior Court against Chamblee Construction Co., Inc.(appellant) and Henry L. Williams, Clerk of the Civil Court of Cobb County.Appellant had previously brought an action in Fulton Superior Court against appellees to enforce a balance alleged to be due on a construction contract, and to foreclose a lien filed in Cobb County for labor and materials furnished under the contract, and in aid of this action had caused garnishments to issue from the Civil Court of Cobb County.In the equitable action in Cobb Countyappellees prayed for temporary and permanent injunction restraining appellant from issuing any more garnishments in aid of the action pending in Fulton County, and prayed that all money held in the Civil Court of Cobb County under process of garnishment be released and the garnishment be dissolved, and that the funds paid be returned to appellees.

Appellant moved to dismiss the complaint on the ground that it was a Georgia corporation, resident in Fulton County, and that Cobb Superior Court had no jurisdiction of the equitable action against it, asserting that the only party resident in Cobb County, the Clerk of the Civil Court, was only a nominal party against whom no substantial relief was prayed.The motion to dismiss the complaint for lack of jurisdiction was denied, and temporary injunction was granted.The appeal is from this judgment.

The enumeration of errors raises two issues, whether the action could be maintained in Cobb Superior Court, and whether there was any basis for equitable relief.

'Equity cases shall be tried in the county where a defendant resides against whom substantial relief is prayed.'Constitution, Art. VI, Sec. XIV, Par. III (Code Ann. § 2-4903).'All petitions for equitable relief shall be filed in the county of the residence of one of the defendants against whom substantial relief is prayed, 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.'Code Ann. § 3-202.

A party bringing an action in a county other than that of his residence submits himself, to the extent of such suit, to the equity jurisdiction of the county wherein the suit is brought.But this waiver of jurisdiction extends only to matters included in the pending litigation, and ordinarily a person not a party to that action can not take advantage of such waiver.Stone v. King-Hodgson Co., 140 Ga. 487, 79 S.E. 122;Willie v. Willie, 154 Ga. 688, 691(2), 115 S.E. 257.

The garnishment proceeding in Cobb County, while ancillary to the action between appellant and appellees in Fulton County, was a distinct cause of action...