Roberts v. Markin, 25196
| Decision Date | 12 June 1969 |
| Docket Number | No. 25196,25196 |
| Parties | W. E. ROBERTS v. Doris MARKIN, Executrix, et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court
The motion to dismiss was properly granted by the trial court since this was an equitable action, (1) in which in personam relief was prayed against a nonresident of Georgia, and (2) in which no substantial relief was prayed against a resident of the county where the action was brought.
Harold E. Ward, Dublin, E. L. Rowland, Wrightsville, for appellant.
Wm. Malcolm Towson, Dublin, for appellees.
This is an appeal from an order dismissing, on motion, a petition seeking equitable relief.
The appellant, W. E. Roberts, brought a petition against the appellee, Mrs. Doris Markin, executrix of the last will and testament of Otto Markin, who died as a resident of the State of Maryland. He alleged in substance that: (1) The appellant (Roberts) executed in December, 1964, a deed to secure a debt in the amount of $9,500 to Otto Markin, conveying a described tract of land in Johnson County, Georgia; (2) the defendant is the executrix of the estate of Otto Markin and as such is transacting business and owns an interest in real estate in Johnson County; (3) the plaintiff is indebted to the estate by reason of the security deed; (4) the defendant, by and through her counsel, agreed to accept $6,000, in full settlement of the debt, but her counsel, W. M. Towson, defendant, a resident of Laurens County, Georgia, refuses to accept the tender; (5) the defendant Towson, as agent of the executrix, refused to accept said tender and is now publishing a notice in a newspaper in Johnson County of her intention to foreclose on said security deed by public sale to satisfy the debt owing by the plaintiff to the estate of Otto Markin; (6) the defendant executrix has refused and continues to refuse to accept the tender of $6,000 in satisfaction of the secured debt; and (7) said foreclosure is proceeding illegally.
The prayers were: (a) that service on both defendants be perfected by publication; (b) that the defendants be enjoined temporarily and permanently from proceeding with said foreclosure, and (c) that the deed of the plaintiff to Otto Markin to secure the debt be canceled upon the payment of $6,000 to the executrix or her attorney.
On presentation of the petition, the court granted a temporary injunction and ordered that Mrs. Doris Markin, executrix, be served by publication, and that defendant Towson be served by second original.
The defendants, appearing only for the purposes of their separate motions, moved to dismiss the petition because it shows on its face a lack of jurisdiction over either defendant, in that Mrs. Doris Markin is a nonresident of the state and defendant Towson is a nonresident of Johnson County. They also moved to dismiss the petition for its failure to state a claim upon which relief could be granted.
The court sustained the motion to dismiss upon each and every ground. Error is enumerated in this order.
Art. VI, Sec. XIV, Par. III of the...
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McIntosh v. Mid-State Homes, Inc., MID-STATE
...here. See Code Ann. § 24-118 (Ga.L.1968, pp. 1419, 1420). This conclusion does not conflict with the holding in Roberts v. Markin, 225 Ga. 352, 168 S.E.2d 576. That case merely applied the Georgia Constitutional provisions for venue in equity actions where there was a resident Also, we find......
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