Payne v. Terhune, 19173
| Decision Date | 13 February 1956 |
| Docket Number | No. 19173,19173 |
| Citation | 91 S.E.2d 348,212 Ga. 169 |
| Parties | Andy PAYNE et al. v. C. D. TERHUNE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
The plea to the jurisdiction by the defendant, a resident of Polk County, to the petition brought in Floyd County, the situs of the land, was properly sustained, the suit being one in which the plaintiffs were seeking the aid of equity to determine a boundary line between coterminous owners of land and to establish title to the land.
Fullbright & Duffey, Rome, for plaintiffs in error.
Clower & Anderson, Rome, for defendant in error.
The judgment under review is one sustaining a plea to the jurisdiction and dismissing an equitable petition. Andy Payne and another filed their petition in three counts in Floyd Superior Court against C. B. Terhune, a resident of Polk County, in which they alleged: They jointly owned as tenants in common land lot 359 in the 3rd district and 4th section of Floyd County, and the defendant was the owner of lot 290 in said district, section, and county. The plaintiffs' lot was adjacent to and immediately north of the lot of the defendant, and the plaintiffs claim title to lot 359, but the defendant has entered into possession of said lot, and was causing irreparable damages by cutting timber therefrom; the boundary line had become confused and obscure, and the plaintiffs had no adequate remedy at law for a complete determination of the cause, and that unless equity intervenes, there would be a multiplicity of suits. The prayers of the first count were for a judgment establishing the north line of lot 359, and decreeing title thereto in the plaintiffs. Count 2 sought to recover actual and punitive damages for the cutting of the timber, and count 3 prayed for damages by reason of diminution of the value of the plaintiffs' property.
The defendant filed a plea to the jurisdiction, on the ground that he was a resident of Polk County and the superior court of Floyd County did not have jurisdiction of his person. The sole question in this case is whether or not the plaintiffs' case is one respecting title to land, or is an equitable case. If it is the former it was properly brought in Floyd County, where the land lies, Constitution of 1945, art. 6, § 14, par. 2, Code Ann. § 2-4902, but if the latter, it could be brought only in Polk County, where the defendant resides. Constitution of 1945, art. 6, § 14, par. 3, Code Ann. § 2-4903.
A suit to establish title to land, or to establish the evidence of title, is one that must be brought in equity,...
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