Graham v. Tallent

• Decision Date: 11 September 1975
• Docket Number: No. 30044,30044
• Citation: 218 S.E.2d 799,235 Ga. 47
• Parties: Lester GRAHAM et al. v. H. G. TALLENT.
• Court: Georgia Supreme Court

Page 799

218 S.E.2d 799

235 Ga. 47

Lester GRAHAM et al. v. H. G. TALLENT.

No. 30044.

Supreme Court of Georgia.

Sept. 11, 1975.

Eugene S. Taylor, Thomas M. Finn, Dalton, for appellants.

Hatcher & Daniel, Ross L. Hatcher, III, Rossville, for appellee.

HILL, Justice.

The defendants appeal, asserting that this court has jurisdiction of this appeal for the reason that it involves equitable relief and title to land.

Plaintiff filed suit in the Superior Court of Walker County alleging execution by defendants of a promissory note and deed to secure debt, alleging default in payment, and praying for a rule nisi to require defendants to show cause why a nonjudicial foreclosure proceeding provided for in the security deed should not be allowed to proceed. The defendants reside and the land is located in Walker County.

In their answer and counterclaim, the defendants admitted execution and nonpayment, alleged fraud by plaintiff, and prayed that plaintiff be enjoined from proceeding with foreclosure. The trial court ruled in plaintiff's favor.

The first question to be decided is whether this court has jurisdiction of this appeal.

It is true that having reviewed this case, it may be as easy to decide it on the merits as on appellate jurisdiction. Thus, insofar as economy of judicial time in the case before us is concerned, we should render our decision on the merits.

However, deciding cases on their merits simply because they are docketed in this court, and without regard to the division of jurisdiction as between this court and the Court of Appeals, constitutes a disservice to litigants, lawyers and appellate judges in future cases. A decision of this case on its merits would stand as a physical precedent that this court had jurisdiction, when under our Constitution it does not.

This court has jurisdiction of appeals in those cases specified in Art. VI, Sec. II, Par. IV (Code Ann. § 2-3704) of the Constitution. Insofar as pertinent here, this court has jurisdiction of 'all equity cases' and 'all cases respecting title to land.'

In the case before us, defendants' prayer that plaintiff be enjoined from proceeding with foreclosure amounts to a prayer by defendants that the relief sought by plaintiff be denied. If this prayer were treated as making this a case in equity, then every case could be made a case in equity by adding a prayer to the answer that plaintiff be enjoined from obtaining the relief sought in the complaint. Appellate jurisdiction is not so easily manipulated. This is not an equity case.

In interpreting the meaning of the words 'all cases respecting title to land' this court frequently has rendered decisions stating that a particular type of case is not a case respecting title to land. For example, the following types of cases have been held not to be 'cases respecting title to land' so as to confer jurisdiction on this court: Suit to foreclose a materialman's lien on real estate, Roberts v. Georgia Southern Supply Co., Inc., 211 Ga. 402, 86 S.E.2d 241; suit to confirm sale of land under power of sale, Tingle v. Atlanta Federal Savings & Loan Assn., 211 Ga. 363, 87 S.E.2d 841; application by widow to ordinary for approval of sale by her of property set aside as year's support, Harnesberger v. Davis, 208 Ga. 629, 68 S.E.2d 585; suit to condemn land, Wiggins v. City of Macon, 224 Ga. 603, 163 S.E.2d 747; suit to determine location of disputed boundary line, Ledford v. Hill, 260 Ga. 304, 57 S.E.2d 77, Whaley v. Ellis, 209 Ga. 147, 71 S.E.2d 209, Jerrard v. Wildes, 209 Ga. 282, 71 S.E.2d 549, Lively v. Thompson, 209 Ga. 425, 73 S.E.2d 90; suit by grantee for declaratory judgment that the grantor in a warranty deed was sane at the time of executing that deed, Bond v. Ray, 207 Ga. 559, 63 S.E.2d 399; and suit for damages for breach of warranty of title contained in deed to land, Sanders v. Calloway, 211 Ga. 580, 87 S.E.2d 397.

Less frequently, this court has undertaken to state an inclusive definition of 'cases respecting title to land.' In Bond v. Ray, 207 Ga. 559, 561, 63 S.E.2d 399, 401, the court said: "Cases respecting title to land', as that term is used in the Constitution for the purpose of defining the jurisdiction of this court, refer to and mean actions at law, such as ejectment and statutory substitutes, in which the plaintiff asserts a presently enforceable legal title against the possession of the defendant for the purpose of recovering the land.' This description was followed in Kidd v. Mayor of Milledgeville, 213 Ga. 524, 100 S.E.2d 178, and Reid v. Standard Oil Co. of Ky., 218 Ga. 289, 127 S.E.2d 678. Even this inclusive definition is somewhat indefinite. It nevertheless indicates that the case before us is not a case respecting title to land for the reason that this case is not an action of ejectment or a statutory substitute, and it seeks sale by foreclosure rather than...