Crawley v. Barge

• Decision Date: 19 February 1909
• Citation: 132 Ga. 96,63 S.E. 819
• Parties: CRAWLEY . v. BARGE et al.
• Court: Georgia Supreme Court

63 S.E. 819

132 Ga. 96

CRAWLEY .

v.BARGE et al.

Supreme Court of Georgia.

Feb. 19, 1909.

1. Injunction (§ 111^*)—Venue.

In cases of injunctions to stay pending proceedings, the petition may be filed in the county where the proceedings are pending, although no defendant against whom substantial relief is prayed resides there, provided no relief is prayed as to matters not included in such litigation.

[Ed. Note.—For other cases, see Injunction, Cent. Dig. § 195; Dec. Dig. § 111.*]

2. Injunction (§ 111*)-Jtjrisdiction.

The petition in this case, if otherwise unobjectionable, prayed for relief as to matters not included in the proceeding sought to be enjoined, and was, therefore, subject to demurrer on the ground of want of jurisdiction.

[Ed. Note.—For other cases, see Injunction, Cent. Dig. & 195; Dec. Dig. § 111.*]

(Syllabus by the Court.)

Error from Superior Court, Fulton County; W. D. Ellis, Judge.

Action by M. F. Crawley against A. A. and J. L. Barge and others. Judgment for defendants, and plaintiff brings error. Affirmed.

M. F. Crawley brought an equitable petition in the superior court of Fulton county against J. G. Bloodworth, notary public and ex officio justice of the peace of the 1, 026th district, G. M., of that county, and A. A. and J. L. Barge, alleged to be residents of Spalding county. The substance of the petition was: The Barges had obtained a judgment against the petitioner in the 1, 001st militia district of Spalding county, and summons of garnishment had been issued on such judgment by Bloodworth, as ex officio justice of the peace of the 1, 026th militia district of Fulton county, directed to the Phcenix Planing Mill, petitioner's employer, and, as such employer would have to answer that it was indebted to him, judgment would be rendered against such garnishee, and petitioner would be deprived of his property or money thereunder. The Barges have no valid judgment against petitioner, and he was not indebted to them at all. He did not live in the 1, 001st militia district of Spalding county at the time the suit upon which the judgment in question was rendered was brought against him, but was then, and for some time prior thereto, a resident of Fulton county. He was never served with a summons in such suit, and has never had his day in court. He endeavored to find out who made the entry of service and what kind of entry it was, in order that he might traverse it, but has been unable to find out these facts. Under the facts alleged, the Barges have injured and damaged petitioner in the sum of $100; §50 thereof being for attorney's fees in this suit, $10 for loss of time, "and $40 exemplary or punitive damages in tying up petitioner's salary." The prayers of the petition were that the Barges and Bloodworth, the ex officio justice of the peace, be enjoined from entering up judgment against the garnishee, that the garnishment be dissolved, that the judgment in the justice's court of Spalding county be set aside, and that petitioner recover of the Barges the damages sued for.

By an amendment it was alleged that the justice's court in Spalding county which rendered the judgment against petitioner was without jurisdiction to do so, as he wasthen a resident of Fulton county and subject to suit in the 1, 026th militia district thereof; that one H. P. Griffin, legal constable had made an entry of service upon petitioner in the suit which the Barges brought against him in the 1, 001st militia district of Spalding county, in which entry he purported to have served petitioner with the summons by leaving a copy thereof at his most notorious place of abode; that this entry was untrue, as petitioner was then a resident of Fulton county; and petitioner "comes now, at the first term of court after notice, and traverses said entry of service, and says that it is untrue, and that he was not served at his most notorious place of abode; and petitioner asks leave of the court to make said legal constable a party defendant to this suit, and that he be required to come into court and answer said traverse in this honorable court." The prayers of this amendment were that Griffin, the Spalding county constable, be made a party defendant to the case, that service be perfected upon him, and that he be required to answer, and that the judgment complained of be set aside.

Upon the allowance of this amendment, the court ordered that Griffin, the constable, be made a party defendant and that service be perfected upon him as such. It does not appear, however, that any service was made upon Griffin, or that he filed any answer. The Barges demurred to the petition upon several grounds, one of which was that the court had no jurisdiction of the case, "as all the defendants against whom substantial relief is prayed, are alleged to be citizens of Spalding county." The demurrer was sustained, and the petition dismissed, and the petitioner excepted.

T. J. Ripley, for plaintiff in error.

J. J. Barge, for defendants in error.

FISH, C. J. (after stating the facts as above). The Constitution declares: "Equity cases shall be tried in the county where a defendant resides against whom substantial relief is prayed." Civ. Code 1895, § 5871. Section 4950 of the Civil Code of 1895 adds to this language: "Except in cases of injunctions to stay pending proceedings, when the petition may be filed in the county where the proceedings are pending; provided no relief is prayed as to matters not included in such litigation." If this section sought to confer equity jurisdiction generally in a county other than that of the residence of a defendant against whom substantial relief is prayed, it would be in direct conflict with the Constitution. The exception stated in section 4950 can be upheld only on the theory of waiver; that is, that where a party institutes a proceeding in a county other than...