Laslie v. Gragg Lumber Co.
| Citation | 193 S.E. 763,184 Ga. 794 |
| Decision Date | 09 November 1937 |
| Docket Number | 11934. |
| Parties | LASLIE v. GRAGG LUMBER CO. |
| Court | Supreme Court of Georgia |
Error from Superior Court, Decatur County; B. C. Gardner, Judge.
Suit by J. T. Laslie against the Gragg Lumber Company. To review a judgment dismissing the suit on general demurrer to the petition, plaintiff brings error.
Reversed.
Syllabus by the Court.
1. A plaintiff cannot, in a court of equity of this state maintain a suit to enjoin a trespass to land located in the state of Florida, although the defendants reside in this state.
2. A plaintiff may sue defendants residing in Georgia for damages for conversion, though the property converted be timber unlawfully cut from lands in Florida.
A. B Conger, of Bainbridge, for plaintiff in error.
John R. Wilson, of Bainbridge, for defendant in error.
J. T. Laslie filed suit in the superior court of Decatur county, Ga., against Gragg Lumber Company, a copartnership, all the partners being residents of said county; the petition, in substance, alleging: That the petitioner is the owner of and has perfect title to certain described lands in the state of Florida; that the defendants have cut from said land trees which they have manufactured into lumber in an amount of 125,000 feet; that the plaintiff is entitled to recover the value of the manufactured product, to wit, $4,062.50; and that the defendants are continuing to cut said timber on said land. The prayers are for process, and that the defendants, their agents, servants, and employees, be restrained and enjoined from further cutting timber on said land; and for general relief. Attached to the petition as an exhibit is the abstract of a conveyance into J. T. Laslie. The defendants demurred generally and specially to the petition. In the grounds of special demurrer they insisted that the abstract attached to the petition did not show a perfect title. The plaintiff amended his petition, and alleged possession of the realty described for more than seven years under color of title, and that he had exercised ownership and dominion over the described lands by the cutting of timber and otherwise using the same. To this first amendment the plaintiff attached an abstract of title showing a grant from the government of the United States of America to Milo Bird and wife to the plaintiff of a portion of the land; a deed from Smith to Curry of the remaining portion; a deed from Curry to D. W. and J. B. Laslie; a deed from D. W. Laslie to J. B. Laslie of his undivided half of the land previously conveyed to them both; and the abstract attached to the original petition had already shown conveyance from J. B. Laslie to the plaintiff; all of which covered the entire tract, and all of which is located in the state of Florida.
The demurrer being renewed, the plaintiff by amendment alleged that the cutting and removing and carrying away of the timber, as set forth in the original petition, occurred in the months of August, September, October, and November, 1933. He further alleged that the described lands 'were in the possession of plaintiff, and possession was evidenced by a fence on a part of the property, by the use and cultivation of a portion of the property and the planting and cultivation thereon of tobacco seed and beds, by using the same as a pasture for cattle and hogs, by hunting and fishing thereon, by returning the same for and paying taxes thereon, by posting the same with written notices tacked upon trees along the boundary lines, by putting out fires and trying to prevent fires from getting onto the lands and burning the timber and growth, by going over and occasionally patroling the same, and by keeping a constant watchout and oversight over the property;' and that his 'possession and that of his predecessors in title has been open, adverse, notorious, and continuous to the people living adjacent to and owning lands adjoining these lands.' The plaintiff struck from his petition the words, 'cut as wilful trespassers,' charged to the defendants, and inserted in lieu thereof the words, 'acted wilfully.' The defendants again renewed their demurrer on the ground that the allegations as to possession being evidenced by dominion, care, cutting of timber, etc., and that said possession was notorious, open, exclusive, and adverse, were conclusions of the pleader; and on the further ground that such possession as alleged did not show legal title as required by law.
The plaintiff filed another amendment in which he made the following allegation: 'Plaintiff does not sue for a trespass to the realty and the consequent diminution of the value of the real estate, but sues in trover for damages for the conversion of the property, the same being timber cut and removed from plaintiff's lands against his will and without any right or authority on the part of the defendants, and the appropriation by said defendants of plaintiff's property to their own use in the manner and form alleged.' There was no exception to the allowance of this amendment. To the petition as amended the defendants renewed their demurrer on the grounds that the facts alleged do not warrant or authorize any of the equitable relief prayed for; and that all facts appearing on the face of the petition show that the timber, which is the subject-matter of the complaint, lies and is situated without the state of Georgia. They demurred specially upon various grounds. The judge, without ruling on the special grounds, sustained the general demurrer and dismissed the action, and the plaintiff excepted.
1. Since the judge did not pass on the grounds of special demurrer, and the sole exception being to the sustaining of the general demurrer, the only question to be considered is as to the correctness of the ruling dismissing the action on general demurrer. The controlling question is whether or not the superior court of Decatur county, Ga., can take jurisdiction of a cause of action involving title to lands situated in the state of Florida and the timber cut therefrom. The issue thus presented necessitatees an inquiry into the law concerning transitory, as distinguished from local, actions. If a cause of action is transitory, it may be maintained in the courts of any state where the defendant can be legally served, though the transaction on which it is based, or the happening of the event which gave rise to it, took place in a foreign jurisdiction. On the other hand, the authorities are practically uniform to the effect that the courts of any state or country will not entertain an action local in its nature and which relates to a subject within the territory of another state or country. Such was the imperative rule of the common law. 7 R.C.L. p. 1060, § 97, and cases cited in note 8. Notable illustrations of transitory actions are those arising out of contracts or for injuries to the person or to personal property. Local actions are generally those involving title to realty, or for the recovery of damages to real property. 27 R.C.L. p. 786, § 9, notes 18, 19. The test by which a transitory action may be differentiated from a local one has often been stated in substance as follows: If a cause of action is one that might have arisen anywhere, it is transitory; but if it is one that could only have arisen in one place, it is local. An injury to an automobile might have happened in a number of places. An injury to land could happen only where the land was located.
The question has several times arisen in other jurisdictions whether a court of equity having jurisdiction of the defendant could enjoin a trespass on lands situated in a sister state; but it has not heretofore been before this court. It has been suggested, however, that in Georgia a court of equity finds authority for such in the Code, § 55-112, which reads as follows: 'Equity may enjoin the defendant as to transactions beyond the limits of this State.' The language of that section first appeared in the Code of 1895, together with what is in our present Code as section 37-1204, to wit: 'Equity may decree in cases of fraud, of trust, or of contract, although property not within the jurisdiction may be affected by the decree.' Section 4854 of the Code of 1895, and section 5427 of the Civil Code of 1910, is as follows: 'A court of equity may enjoin the defendant as to transactions beyond the limits of this State, and may decree in cases of fraud, of trust, or of contract, although property not within the jurisdiction may be affected by the decree.' None of the above originated in a statute, but it was merely codified from the decision of this court in Engel v. Scheuerman, 40 Ga. 206, 210, 2 Am.Rep. 573. There the plaintiff sued out attachment in this state, and obtained judgment, which judgment was paid by the defendant. The plaintiff also sued in the courts of New York, the residence of the defendant, on the identical claim. When the defendant paid the Georgia judgment, the plaintiff promised not to prosecute the New York case; but he did sue to judgment the claim in the New York court. This court held that the question in that case was whether a court of chancery in this state had jurisdiction to restrain the personal action of the defendant, so far as to prohibit him from enforcing the collection of the judgment obtained in the court of New York; and further held that the creditor, a citizen of this state, having voluntarily sued his claim to judgment in the court of this state and accepted payment of the judgment, should be enjoined from collecting the claim for the second time in a foreign court. Justice Warner stated in that connection, that: 'The defendant fraudulently led the plaintiff to believe, both by word and act, that the suit...
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