Roberson v. Bennett

• Decision Date: 23 July 1917
• Docket Number: 8452.
• Citation: 93 S.E. 297,20 Ga.App. 590
• Parties: ROBERSON ET AL. v. BENNETT ET AL.
• Court: Georgia Court of Appeals

93 S.E. 297

20 Ga.App. 590

ROBERSON ET AL. v. BENNETT ET AL.

No. 8452.

Court of Appeals of Georgia, Second Division

July 23, 1917

Error from City Court of Jesup; D. M. Clark, Judge.

Action by I. Roberson and others against I. Bennett and others. There was a judgment for defendants, the action being dismissed, and plaintiffs bring error. Affirmed.

Jas. R Thomas, of Jesup, for plaintiffs in error.

Parker & Parker, of Waycross, for defendants in error.

BLOODWORTH J.

A petition was filed in the city court of Jesup by certain persons who alleged that they were "members of what is known as Old Bethel Church," against certain other persons, designated as "trustees of what is known as New Bethel Church." The petitioners alleged that they were owners of certain property, consisting of organ, Bible benches, etc., and that each of the petitioners, "as members of Old Bethel Church," owned a thirty-eighth undivided interest in said property. The prayer of the petition was for the partition of said property. To the petition the defendants filed a demurrer, a portion of which is as follows:

"(1) Plaintiff's declaration does not set forth a cause of action. (2) Plaintiff's petition shows upon its face that they are seeking a remedy and relief which can only be had in the superior court, and for which this court has no jurisdiction. (6) Because the remedy sought can only be had in a court with equitable jurisdiction, which jurisdiction this court has not."

Plaintiff then offered to amend the declaration as follows:

"(1) Plaintiff amends by striking from paragraph 3 of said petition the allegation that says that said property cannot be equally divided in kind, but the same can be partitioned, and alleging that defendants are in possession of said personal property, and refuse to deliver the same to the defendants. (2) Plaintiff amends by striking all reference in said petition to or for a partition of the property and ask the recovery of the value thereof, which has been wrongfully and illegally converted."

The court refused to allow the amendment. The demurrer was sustained and the suit dismissed.

These rulings were right. Only the superior court has jurisdiction in matters of partition. Civil Code 1910, §§ 3726, 5358, 5370.

"A suit in a court having no jurisdiction is no suit at all; it is simply a nullity." Gray v. Hodge, 50 Ga. 262, 263; Powell v. Cheshire, 70 Ga. 357, 48 Am.Rep. 572 (1-a); W. U. Tel.

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