Georgia Power Co. v. Harrison, 40457

• Decision Date: 16 July 1984
• Docket Number: No. 40457,40457
• Citation: 318 S.E.2d 306,253 Ga. 212
• Parties: GEORGIA POWER COMPANY v. HARRISON et al.
• Court: Georgia Supreme Court

Page 306

318 S.E.2d 306

253 Ga. 212

GEORGIA POWER COMPANY v. HARRISON et al.

No. 40457.

Supreme Court of Georgia.

July 16, 1984.

Rehearing Denied July 31, 1984.

Wallace Miller, Jr., Wallace Miller III, W. Warren Plowden, Jr., Jones, Cork & Miller, Macon, for Georgia Power Co.

G. Lee Dickens, Jr., Milledgeville, George D. Lawrence, Eatonton, for Harold N. Harrison et al.

BELL, Justice.

This suit concerns land located on the shore of Lake Sinclair. In 1952 appellee Harrison's predecessor in title conveyed to Georgia Power Co., the appellant, fee simple title to land "on and below a contour line having an elevation of 340 feet above sea level, U.S.G.S. Datum," as well as an easement in Harrison's predecessor's lot "between a contour line having an elevation of 340 feet above sea level and a contour line having an elevation of 350 feet above sea level...." Harrison bought the lot in 1982, and shortly thereafter Georgia Power's employees discovered a new wooden seawall extending from Harrison's lot into the lake. On May 16, 1983, Georgia Power filed suit in Putnam Superior Court, naming Harrison and appellee Hamby as defendants.

In its complaint Georgia Power alleged that the seawall and the backfill behind the wall constituted an unlawful encroachment and continuing trespass on its land, and that Harrison and Hamby were responsible for establishing the wall and fill. Averring that it did not have a complete remedy at law, Georgia Power prayed for the following relief: a declaration that the fee simple title to the land on and below the 340-foot contour line as of the date of filing suit was owned by Georgia Power; that the defendants be jointly and severally enjoined from continuing the trespass, and jointly and severally compelled to remove the seawall and backfill from land below the 350-foot contour line; that if the defendants failed to remove the wall and fill, the Sheriff of Putnam County be directed to do so at their joint and several expense; and that Georgia Power be granted other relief as the court deemed proper.

The trial court set a date for a rule nisi hearing, and copies of the rule nisi order were attached to the service copies of the complaint. The rule nisi order did not explain the purpose of the hearing other than stating that the court would require the defendants to show cause why Georgia Power's prayers for relief should not be granted. Hamby, a resident of Putnam County, filed his answer prior to that hearing, admitting that as an employee of Harrison he had graded and backfilled behind the wall, but denying that he had trespassed; he prayed generally for dismissal of the complaint. Harrison, who is a DeKalb County resident, was served in that county by the DeKalb County Sheriff prior to the rule nisi hearing, but did not file his answer until after the hearing. The hearing was held June 9, 1983; at its commencement counsel for Georgia Power indicated that the plaintiff was appearing in order to obtain an interlocutory injunction. Harrison's counsel announced he was reserving the right to raise defenses of insufficiency of service of process, OCGA § 9-11-12(b)(5) (Code Ann. § 81A-112), improper venue, id., (b)(3), and lack of personal jurisdiction, id., (b)(2).

Subsequent to the hearing Harrison filed a responsive pleading in which he demanded dismissal of the action on the grounds he had already orally enumerated to the court. On September 6, 1983 the court entered an order dismissing the action as to both defendants. The court found that based on evidence received during the hearing "Hamby has not done any act which constitutes a trespass upon lands of Georgia Power Company and is not threatening to do so ...," and dismissed him as "not a proper party to this action." ¹ Regarding Harrison, the court ruled that he had not been properly served, that Putnam County was not the proper venue for suit against him, and that it did not have jurisdiction over his person. ² Georgia Power appeals from the judgment of dismissal, and we reverse.

1). Harrison's motion to dismiss for insufficiency of service was grounded on his contention that the sheriff of Putnam County was the sole sheriff authorized to serve him with process. However, this proposition is clearly wrong, since OCGA § 9-11-4(c) provides that "Process shall be served by the sheriff of the county where the action is brought or where the defendant is found, or by his deputy...." (Emphasis supplied.) "There is no requirement that a defendant shall have been served within a county where venue properly lies." Alcorn v. Alcorn, 245 Ga. 1(2), 262 S.E.2d 778 (1980). OCGA § 9-11-4(f). We find that the court erred by granting the motion.

2). Another of Georgia Power's contentions concerns the propriety of the manner in which the court determined the question of venue. Appellant's argument appears to be that the range of factual and legal issues considered by the trial court in the process of ruling on venue was so broad that the court effectively, and improperly, determined the merits of Georgia's Power's substantive claims. ³

The authority of the trial court to hear mixed questions of jurisdictional law and fact in advance of trial is conferred by OCGA § 9-11-12(d). "A preliminary hearing of defenses of lack of jurisdiction over the person and improper venue whether made in a pleading or by motion may be heard and determined by the court before trial on the application of any party. [Cit.] At such hearing factual issues shall be determined by the trial court." Durdin v. Taylor, 159 Ga.App. 675, 285 S.E.2d 51 (1981). ⁴ Accord, Daughtry v. Chaney-Bush Irrigation, Inc., 166 Ga.App. 708(1), 305 S.E.2d 439 (1983).

However, although OCGA § 9-11-12(d) clothes the court with discretion to hear jurisdictional issues in advance of trial, it is a legal discretion which must balance the factors favoring pretrial determination of a defense against other circumstances favoring delay, and which generally should not be exercised to consider questions of jurisdiction which are largely co-extensive with the merits of a claim. Wright & Miller, Federal Practice and Procedure: Civil § 1373; 2A Moore's Federal Practice § 12.16. "In exercising this discretion, the court must balance the need to test the sufficiency of the defense or objection and the right of a party to have his defense or objection promptly decided and thereby possibly avoid costly litigation against such factors as the expense and delay the hearing may cause, the difficulty or likelihood of arriving at a meaningful result at the hearing, and the possibility that the issue to be decided on the hearing is so interwoven with the merits of the case that a postponement until trial is desirable." Wright & Miller, supra, at 709-11. In particular, "where determination of the defense will involve going into the merits, the question may well be re[serv]ed until trial. The rule is not intended to permit 'fragmentary and separate trials of issues that require coherent presentation for their just determination.' " 2A Moore's, supra, at 2354.

In the instant case there is nothing in the record to suggest that the court notified the parties prior to entry of judgment that it intended to reach the merits of Georgia Power's claim, or that the court's reasoning included consideration of said merits on a de facto basis. Under these circumstances we will not impute such a determination to the court, and therefore find that the court's review of the OCGA § 9-11-12(b)(3) question did not implicate the merits, and that there was no abuse of discretion.

3). The trial court apparently concluded that this suit was brought substantially in equity. However, Georgia Power contends that the purpose of its suit is essentially to establish title to land, and that venue in Putnam County is therefore authorized by 1983 Ga. Const. Art. 6, Sec. 2, Para. 2, which provides that "Cases respecting title to land shall be tried in the county where the land lies...." We disagree. "While the instant petition is predicated upon the ownership by the plaintiff of certain described lands upon which the defendants allegedly committed acts of trespass, and of necessity requires the ascertainment and establishment of the boundary line in controversy, looking to the facts alleged by the plaintiff and the nature and character of the relief sought, we are of the opinion that this is a case in equity seeking injunctive relief against trespass to land, and involving the determination of a disputed boundary line, which a court of equity, under the alleged circumstances of this case, has a right to adjudicate." Dawson v. Altamaha Land Co., 215 Ga. 700, 703(1), 113 S.E.2d 129 (1960).

4). Georgia Power asserts that if this action is essentially equitable in nature, venue lies in Putnam County pursuant to 1983 Ga. Const. Art. 6, Sec. 2, Paras. 3 and 4, which respectively prescribe that "Equity cases shall be tried in the county where a defendant resides against whom substantial...