Martin v. Approved Bancredit Corp.

• Decision Date: 23 September 1968
• Docket Number: 24733,Nos. 24732,s. 24732
• Citation: 163 S.E.2d 885,224 Ga. 550
• Parties: Paul E. MARTIN et al. v. APPROVED BANCREDIT CORPORATION et al. Johnny Lee HOLCOMB et al. v. APPROVED BANCREDIT CORPORATION et al.
• Court: Georgia Supreme Court

Page 885

163 S.E.2d 885

224 Ga. 550

Paul E. MARTIN et al. v. APPROVED BANCREDIT CORPORATION et al.

Johnny Lee HOLCOMB et al. v. APPROVED BANCREDIT CORPORATION et al.

Nos. 24732, 24733.

Supreme Court of Georgia.

Sept. 23, 1968.

Syllabus by the Court

The Superior Court of Hall County did not have jurisdiction of the defendant corporations in the present cases and it was not error to sustain their pleas to the jurisdiction.

The plaintiffs in each case filed a petition in the Hall County Superior Court seeking to enjoin the sale of realty under powers of sale contained in deeds to secure debt and to have such deeds, the notes and the contracts executed in conjunction therewith declared void. The actions were originally filed against a foreign corporation and a Georgia corporation. Service upon the foreign corporation was sought by service upon its attorney in fact who was advertising the property for sale and service upon the Georgia corporation was sought by second original (its principal office and place of doing business being in another county). Thereafter, an amendment was filed naming the attorney in fact, a resident of Hall County, as a defendant. Each corporation filed a plea to the jurisdiction in each case which were sustained and it is from these judgments that the plaintiffs appeal.

Robinson, Thompson, Buice & Harben, Sam S. Harben, Jr., Gainesville, for appellants.

Norton, Cooper & Lang, Edward Lang, Gainesville, for appellees.

NICHOLS, Justice.

1. Prior to the enactment of the Georgia Civil Practice Act (Ga.L.1966, p. 609) (Code Ann. Title 81A), all pleadings were construed most strongly against the pleader when demurrers or similar motions were being considered, and conclusions unsupported by allegations of fact would not withstand such attacks. Since the effective date of the Civil Practice Act, supra, the rule has generally been otherwise in that all that is required as to the claim is a short plain statement showing the pleader is entitled to relief and a demand for judgment for the relief to which the plaintiff deems himself entitled. Ga.L.1966, pp. 609, 619 (Code Ann. § 81A-108). An exception to this rule is presented, however, when allegations of venue are considered, for the same section of the Civil Practice Act cited above provides: 'An original complaint shall contain facts upon which the court's venue depends.' Thus it is apparent that the rules as to pleading venue were not changed by the enactment of the Georgia Civil Practice Act.

The venue of actions is established by Art. VI, Sec. XIV of the Constitution of 1945, and while in most cases a bare allegation of the defendant's residence within the county, or the location of real estate within the county, will suffice to meet the requirements of alleging the facts upon which venue depends, yet in an action against residents and nonresidents where venue as to the nonresidents depends upon the relief sought against the residents a plea to the jurisdiction will be sustained where the petition does not set forth a cause of action against the resident defendant. See Fowler v. Southern Airlines, Inc., 192 Ga. 845, 16 S.E.2d 897; Planters Cotton Oil Co. v. McCurley, 199 Ga. 104, 106, 33 S.E.2d 270, and citations.

In both of the last cited cases the petitions were examined to determine if a cause of action was set forth for equitable relief against the resident defendant in order to determine if the court had venue of a nonresident defendant, because prayers alone for relief against the resident defendant without facts authorizing such relief would not give the court venue over the nonresident defendant.

In the case sub judice it is alleged that the actions are to cancel deeds to secure debt as well as the notes and contracts out of which the deeds to secure debt arose, that the principal office of the Georgia corporation is in another county, and that service must be perfected...