Shaw v. Crawford, 17118

• Decision Date: 14 June 1950
• Docket Number: No. 17118,17118
• Citation: 60 S.E.2d 143,207 Ga. 67
• Parties: SHAW et al. v. CRAWFORD.
• Court: Georgia Supreme Court

Page 143

60 S.E.2d 143

207 Ga. 67

SHAW et al. v. CRAWFORD.

No. 17118.

Supreme Court of Georgia.

June 14, 1950.

Syllabus by the Court.

The allegations of the petition as amended, showing an actual controversy and praying for a declaratory judgment adjudicating title to realty, were sufficient to constitute an action respecting title to land, the venue of which was in the county where the land was situated; and, accordingly, the trial court did not err in overruling the defendants' demurrer, on the ground that the petition as amended failed to allege a cause of action against the defendants because it showed on its face that none of them was a resident of the county where the suit was filed.

Mrs. Nan D. Crawford filed in Polk Superior Court, against C. M. Shaw, a resident of Bartow County, and J. F. Bailey and J. F. Childers, residents of Floyd County, a petition which as amended alleged substantially the following: The petitioner is the owner of, and is in possession of, described realty in Polk County. The defendant Shaw claims title to the land under a separate chain of title. He came to the petitioner in 1946, asserting a claim of title, and after a discussion of the same agreed to refrain from committing any act designed to take possession of the land. Subsequently on repeated occasions up until approximately two weeks prior to the filing of this suit, the defendant Bailey, purporting to act as agent for the defendant Shaw, negotiated with the petitioner seeking to purchase the timber on the land. Notwithstanding the defendant Shaw's agreement to refrain from Forcibly taking possession of the land, he, acting in conjunction with the other defendants, is attempting to assert his purported claim of title and ownership by entering upon the land and cutting timber thereon. A controversy exists between the petitioner and the defendant Shaw, and the other defendants acting in conjunction with him, with respect thereto. Notwithstanding the above agreement, the defendants have entered upon the land and by themselves and through their employees and agents are in the act of cutting timber for sawmill purposes, without any right so to do, and in violation of the rights of the petitioner. The defendants have already cut approximately 15,000 board feet of saw timber, of the value of $20 per 1,000 feet, and they will continue to cut the timber unless enjoined from so doing. The defendants have erected a sawmill and have cut roads on the property. The petitioner has requested the defendant Bailey, who appears to be in charge thereof, to discontinue the act of trespass, and to remove the sawmill, but her demand has been refused and threat has been made to continue the cutting of timber. The petitioner is entitled to recover $500 in damages, the same being the value of the timber cut and the damages done to the property.

The prayers besides for process, service, and rule nisi, were: that the court grant a declaratory judgment declaring the title to the property to be in the petitioner; that she recover of the defendants $500 for the value of the timber cut and for damages to the property; that the defendants be enjoined from cutting the timber and from operating the sawmill on the property; and that the petitioner have general equitable relief. An abstract of the petitioner's title was attached to and made a part of the petition.

Each of the defendants filed separate demurrers, which were renewed to the petition as amended. The demurrers were overruled, and to these rulings the defendants excepted.

Wm. A. Ingram, Cartersville, Albert D. Tull, Cartersville, for plaintiffs in error.

W. W. Mundy, Jr., Cedartown, for defendant in error.

ATKINSON, Presiding Justice (after stating the foregoing facts).

Each of the defendants demurred on the ground that the petition as amended failed to allege a cause of action against them, because it stated on its face that none of them was a resident of Polk County, and no substantial relief was sought against any resident of that county. There was no demurrer on the ground that the allegations were insufficient to state a cause of action for a declaratory judgment, and therefore it becomes unnecessary to decide whether the case comes within the purview of the statute, Ga.L.1945, p. 137, Code Ann.Supp. § 110-1101 et seq., providing for a declaratory judgment.

Counsel for the defendants insist that the action is not one respecting title to land, which must be brought in the county where the land lies, but in substance is an action for trespass seeking damages and injunctive relief in connection therewith, and that title to land is only incidentally involved.

In the early case of Osmond v. Flournoy, 34 Ga. 509, this court held that an action of trespass must be brought in the county where the defendant resides, though the land, the subject of the injury, lies in a different county. Similar rulings were made in Brindle v. Goswick, 162 Ga. 432(2), 134 S.E. 83, involving the venue of an equitable suit to recover possession of land and damages for cutting timber; and in Southern Title Guarantee Co. v. Lawshe, 137 Ga. 478(1), 73 S.E. 661, involving a petition to cancel deeds as a cloud on title. To the same effect see Babson v. McEachin, 147 Ga. 143(2), 93 S.E. 292; Cook v. Grimsley, 175 Ga. 138, 165 S.E. 30.

In Vizard v. Moody, 115 Ga. 491, 41 S.E. 997, a petition was filed in Glynn County, where the land was situated,...