Fowler v. Southern Airlines

• Decision Date: 09 September 1941
• Docket Number: 13809.
• Citation: 16 S.E.2d 897,192 Ga. 845
• Parties: FOWLER et al. v. SOUTHERN AIRLINES, Inc., et al.
• Court: Georgia Supreme Court

16 S.E.2d 897

192 Ga. 845

FOWLER et al. v. SOUTHERN AIRLINES, Inc., et al.

No. 13809.

Supreme Court of Georgia

September 9, 1941

Rehearing Denied Oct. 14, 1941.

Syllabus by the Court.

1. A suit to enjoin a sale of land, and to cancel a security deed thereon, is not a suit respecting title to land within the meaning of the constitution of this State, par. 2, sec 16, art. 6 (Code, § 2-4302), but an equity case.

2. Under the constitution, par. 3, sec. 16, art. 6 (Code, § 2-4303), equity cases must be brought in the county wherein resides a defendant against whom substantial relief is prayed.

(a) This means substantial equitable relief.

3. The domicile of a domestic corporation is the county in which its principal office is located.

(a) It will not be presumed on demurrer, in the absence of an allegation to the contrary, that as to a corporation created by the superior court its domicile is in a county other than that where its charter was granted.

(b) This result is not altered by the fact that most of its business is transacted in, and its managing official resides in, a different county.

4. No cause of action is stated in a petition which states mere legal conclusions with no facts alleged on which to base them; nor will the use of epithets supply the place of facts; nor are general and loose allegations, consisting merely of the statement of conclusions, without averring the facts upon which the conclusions are based, sufficiently definite to raise an issue. The petition in the instant case does not contain sufficient allegations to afford a basis for the grant of any substantial equitable relief against the only defendant shown to be a resident of the county wherein the suit is brought.

5. The court being without jurisdiction except as to the one defendant who under the allegations of the petition was a resident of the county in which the suit was brought, and no facts being alleged sufficient to show any right to equitable relief as against him, it was not erroneous to sustain a demurrer interposed by the non-resident defendants on the ground of want of jurisdiction.

6. In an equity suit where several persons are joined as defendants, whether or not substantial equitable relief is prayed against the only defendant shown by the petition to be a resident of the county wherein the suit is brought is not to be determined alone by the nature of the prayers against the sole resident defendant, but the petition itself must be looked to; and in the absence of allegations of fact necessary to support such prayers, the petition will not be construed as a suit whereof a court of the county of his residence has jurisdiction.

7. It was not error to sustain the ground of demurrer of the resident defendant, and to dismiss the action.

C. B. McCullar, of Milledgeville, for plaintiffs in error.

Sibley & Allen, of Milledgeville, for defendants in error.

L. S. Fowler and Mrs. Louis C. Fowler filed in Baldwin superior court their petition against Southern Airlines, Inc., E. W. Romberger, H. T. Dobbs, and two other defendants. It is alleged that Southern Airlines, Inc., was a Georgia corporation, having been chartered by the superior court of Fulton County, the having its present office in Baldwin County, the present officers of the corporation residing in said county, and its main business being performed therein; that Laird, its president and treasurer, resides and has his office in said county; that Romberger, its vice-president and general manager and the person charged with its general management, is an actual resident of Baldwin County and maintains the office of the corporation in Baldwin county; that Dobbs resides in DeKalb County, and the other two defendants in Fulton County; that petitioners are majority stockholders in said corporation; that recently they learned that an alleged security deed had been executed and recorded and been delivered to Dobbs; that this deed was void, because it was a fraudulent and fictitious transaction and made without consideration; that an advertisement is now running in which it is stated that the property described in the advertisement and in the deed will be sold on the first Tuesday in April, 1941. No security deed is attached to the petition, but it is referred to as having been 'recorded in the office of the clerk of the superior court,' in 'deed book 26, pages 32-34,' and as being 'hereto attached by reference.' A copy of the advertisement of the sale is set forth as an exhibit. It discloses that the realty is situated in Baldwin County, and that the property is to be sold by H. T. Dobbs as attorney in fact for Southern Airlines, Inc., as the property of Southern Airlines, Inc., under the powers and authority contained in a certain deed to secure debt from Southern Airlines, Inc., to H. T. Dobbs, dated May 11, 1940, pages 32, 33, and 34 of Baldwin County records. It is alleged that the attempted foreclosure is premature and therefore void, because under the deed the indebtedness, if any, would not be due until May 11, 1941; that a second security deed to Dobbs was executed, which is also characterized as fraudulent, this being signed by the corporation by Laird as president and Romberger as vicepresident, 'and no actual consideration given for the execution of either of them.' The petition contains further allegations as follows:

That the corporation acting through its alleged officers and directors, and also acting jointly with Romberger, has conspired with the other named defendants outside of Baldwin County to defraud said corporation, petitioners and other stockholders; that the 'defendants are conniving and conspiring together to sell the land and improvements in this county, the moving stock, the stock of the corporation, and generally to dissipate the property of the corporation and turn it over to Dobbs and others including themselves.' Aside from a reference to 'the fraud and conspiracy of all the defendant,' and that the defendants have been maneuvering the stock books of the corporation and altering the records to show an entirely different financial situation, the only other allegations made as to Romberger are, that he 'is a promoting tool of the Fulton and DeKalb counties,' schemers named as defendants herein,' and that he has very little, if any, stock in the corporation, and that it is not to the best interest of the corporation for him to handle its affairs; that he is a man of temperamental disposition, unreliable, and given to making rash and unreasonable statements, is either a man of ungovernable temper or a very big bluffer; that his conduct has been making him a public nuisance in Milledgeville, etc. Among the prayers were that the sale be enjoined, the security deeds cancelled, the defendants be enjoined from disposing of any other property of the corporation except in the normal operation of its flying school, and that 'judgments be rendered against the defendants or any or all of them in whatever sums or amounts that property of the corporation may have been wasted by them;' and for such other and further relief, etc. The specific prayers against Romberger were that he be enjoined from further obnoxious conversation with the public about the affairs of the corporation, and be enjoined from accosting petitioners or their attorneys or making any further threats or otherwise injuring the corporation or others connected with it in any way; and that he be enjoined from interfering or disposing of any of his personal property either real or personal, for the better protection of the bringing of actions for any damages that he may have already caused.

The defendants filed demurrers, general and special. All of them raised the point that on its face the petition showed that the superior court of Baldwin County had no jurisdiction. The judge sustained the demurrers and dismissed the action. The plaintiffs excepted.

ATKINSON Presiding Justice.

1. For the proposition stated in the first headnote the cases of Bird v. Trapnell, 147 Ga. 50, 92 S.E. 872, and Babson v. McEachin, 147 Ga. 143, 93 S.E. 292, are directly in point, and it requires no further discussion.

2. The ruling in the second headnote is controlled by the cases of Wright v. Trammell, 176 Ga. 84, 166 S.E. 866, et cit., and Kinney v. Crow, 186 Ga. 851(2 a), 199 S.E. 198, and need not be elaborated.

3. The petition states that the application for charter for the defendant Southern Airlines, Inc., was filed on March 1 1937, in Fulton superior court, and that it was chartered by the superior court of Fulton County, Georgia. It is also averred that it has its present office in Baldwin County, and that its officers reside and have their offices and business places of the corporation in Baldwin County, and further that its main business is performed therein. The charter itself is not set forth, nor the date when granted. There is no averment that its charter specifies where its principal office is to be located, or that its corporate domicile is in Baldwin County. It is averred that 'this corporation is subject to the jurisdiction of this court,' which is but a legal conclusion with no facts on which to base the same except those heretofore recited. Its charter was granted before January 28, 1938, the date of the approval of the Corporation Act of 1938 (Ga.Laws 1937-38, Ex.Sess., p. 214 et seq.). That act provides that the application for charter shall be presented to the judge of the superior court of the county in which the principal office of the corporation is to be located. The previous law, Code, § 22-302, did not in express terms require that the application should be filed in the county where the principal office was to be located, but was in the following language: 'The persons...