Powell v. Cheshire

• Decision Date: 28 February 1883
• Citation: 70 Ga. 357
• Court: Georgia Supreme Court
• Parties: Powell. vs. Cheshire.

70 Ga. 357

Powell. vs. Cheshire.

Supreme Court of the State of Georgia

FEBRUARY TERM, 1883.

[This case was brought forward from the last term, under §4271 (a) of the Code.]

Equity. Practice in Superior Court. Jurisdiction. Constitutional Law. Before Judge Hillyer. Fulton Superior Court. April Term, 1882.

Reported in the decision.

J. T. Pendleton; George N. & D. P. Lester, for plaintiff in error.

Candler & Thomson, for defendant.

Jackson, Chief Justice.

This bill in equity was filed to stay waste by writ of injunction. The complainant alleges title to, and possession of, a tract of land in DeKalb county, used by him as a farm, and upon which he was preparing to erect a dwelling-house as a residence; that some seventeen acres of said land was wooded, and was the only woodland on the tract of ninety-two acres; that defendant, without title or claim of right, was cutting down the timber on those seventeen acres; that he had destroyed many trees, and was still engaged in cutting down and destroying others; and that, among those thus destroyed, were trees where he had cleared up the undergrowth and cleaned up the spot for the purpose of erecting his residence thereon; and that thus his entire place was being ruined and wasted by a naked trespasser, by the destruction of all the timber thereon essential for the farming purposes of the tract, and the killing and destroying the shade trees which the complainant had thus prepared and reserved for the surroundings of the contemplated residence; and thus that the damage to the farm and the part of the land reserved for said residence, was incapable of being computed in money, and irreparable.

To this bill, after several terms of the court had elapsed, a general demurrer, for want of equity therein, was filed. Counsel for complainant agreed that this demurrer should be considered as filed at the first term. After this agreement, an amendment was made to the bill, and to the bill, as amended, no demurrer was filed.

The court dismissed the bill, and complainant excepted 1. If the court had no jurisdiction, the court should have dismissed it whenever apprised of that fact; for it would be a vain thing to try a case, where it had no authority or jurisdiction to decree relief. So that the first question is, did the court of equity in Fulton county have jurisdiction of the cause, the defendant residing in Fulton and the land in DeKalb?

Equity causes are to be tried in the county of the residence of a defendant against whom substantial relief is prayed. Constitution, Art. 6, sec. 16, par. 3, Code, §5169. Cases respecting titles to land must be tried where the land lies. Code, §5168, par. 2 of the same title and section The two paragraphs must be construed so that both can stand and neither be annulled.

If, therefore, the relief prayed for in the equity cause, be not to recover land, and in that sense affect title, the court of the residence of the defendant would have the jurisdiction; but if its purpose was, and the relief prayed for is, to fix title, then the question of jurisdiction would be more difficult of solution, and the effort to reconcile the two paragraphs of the constitution so as to vitalize both, would not be so easy. This cause is not to try title, but to stay waste. Title may be drawn into the trial, but it is an incident, not the gravamen of the bill.

But we think that this court has settled the principle that covers this cause. It has been ruled squarely that an action of trespass quare clausum fregit, must be brought in the county of the defendant's residence.

Paragraph 6 of the same section of the same article, which is, in effect, the same as in prior constitutions, requires all other cases to be tried where defendant resides. Other cases than what cases? Those classes of cases previously provided for, is the clear answer. One class of these is cases respecting land titles, in paragraph 2. Yet, trespass quare clausum fregit, it was ruled in 34 Ga., 509, and 35 Ga., 144, should be brought in the county where the defendant resided, though the land lay in a different county.

That writ, at common law, affects title to land as much as as this equity suit can. The one is to put a stop to trespass, by final decree for injunction; the other is to recover damage therefor. Neither can be successful unless the title, by possession or deed, be exhibited to the court, and if the jurisdiction of the law court be clear in the county of residence, the jurisdiction of the equity court is as clear. See, also, 34 Ga., 53, 62, which appears to settle the point in equity cases.

2. Was the bill legally dismissed because the complainant had an adequate and complete remedy at law?It could not be, because the demurrer set up no such ground' which it should have done. That demurrer must...