Vizard v. Moody
| Decision Date | 04 June 1902 |
| Parties | VIZARD v. MOODY. MOODY v. VIZARD. |
| Court | Georgia Supreme Court |
VENUE—ACTION TO RECOVER LAND—INJUNCTION.
While a petition which seeks to recover possession of land and mesne profits on a legal title must, under the constitution of this state, be instituted in the superior court of the county where the land lies, yet a court of the county where the land lies, as to a person who is a resident of another county in this state, has no jurisdiction to grant equitable relief, such as injunction and the appointment of a receiver, although the petition under which the land is sought to be recovered contains prayers for such equitable interposition. The grant of an injunction and the appointment of a receiver in such cases come only within the jurisdiction of equitable principles, and a petition seeking relief thereunder can, as an original action, be maintained only in the county of the residence of one of the defendants against whom such relief is sought. (Syllabus by the Court.)
Error from superior court, Glynn county; J. W. Bennet, Judge.
Action by A. Vizard against S. A. Moody. From the judgment, both parties bring error. Affirmed.
Atkinson & Dunwody, for plaintiff.
W. G. Brantley, Gale & Butts, and Owens Johnson, for defendant.
LITTLE, J. Vizard filed a petition in the superior court of Glynn county against S. A. Moody, of Appling county. He alleged that the defendant was in possession of two lots of land in the city of Brunswick; that petitioner held title to the same by virtue of a sale made under a deed of trust executed by D. H. Moody and S. A. Moody; that the sale was regularly made in all respects, and vested the petitioner with title to said lot; that after the sale he made a demand upon the defendant for the possession and surrender of said lots, which was refused; and that the defendant, S. A. Moody, wrongfully withholds possession of the same from him. He further alleged that the property is rented for $25 per month, and that he, as a matter of right, is entitled to said rents, but, being in possession, the defendant collects and appropriates the same to her own use. He alleged further that the defendant is insolvent, and that to permit her to continue to collect and appropriate the rents would cause him irreparable injury and damage. He averred that while the trust deed under which the sale was made was not properly witnessed, so as to be admitted to record, it is yet good between the parties, and, not being entitled to record, it is in the power of the defendant to transfer the same, and to create liens thereon which would defeat his title. Thereupon, waiving discovery, he prayed for a judgment in his favor against defendant for the land, for mesne profits, and for a writ of possession. He further prayed that the defendant be enjoined from transferring or creating any lien on the property, and that a receiver be appointed to take charge.of the property and collect and preserve the rents until the final determination of the case. On the presentation of this petition the judge presiding in the superior court of Glynn county issued a rule nisi calling on the defendant to show cause on April 13th thereafter why the injunction and receiver as prayed for should not be granted, and issued a restraining order in accordance with the prayer for injunction, tobe in force until the hearing. The process attached to the petition was especially directed to the sheriffs of the counties of Glynn and Wayne, and required the defendant, "S. A. Moody, of Appling county, " to appear at the next term of the superior court of Glynn county to answer the plaintiff in an action of ejectment, etc. By amendment, so much of the petition as recited that the defendant was of the "county of Appling" was stricken, and in lieu thereof the words "county of Wayne" were substituted. A similar amendment was made to the process, and the direction of same was amended so as to be addressed especially to the sheriffs of Glynn, Ware, and...
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Hayes v. Howell
...though the suit is for declaratory judgment and an incidental injunction may issue to preserve the status quo. Compare Vizard v. Moody, 115 Ga. 491(1), 41 S.E. 997 (1902), predating the Declaratory Judgment The trial court did not err in failing to dismiss the case on the ground of improper......
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Flemming v. Drake
...in which the suit was brought, did not have jurisdiction to grant the equitable relief. Civil Code 1910, § 5527. See, also, Vizard v. Moody, 115 Ga. 491, 41 S.E. 997; Brindle v. Goswick, 162 Ga. 432 (2), 134 S.E. The judge did not err in sustaining the general demurrers and in dismissing th......
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Flemming v. Drake, (No. 5443.)
...which the suit was brought, did not have jurisdiction to grant the equitable relief. Civil Code 1910, § 5527. See, also, Vizard v. Moody, 115 Ga. 491, 41 S. E. 997; Brindle v. Goswick, 162 Ga. 432 (2), 134 S. E. 83. The judge did not err in sustaining the general demurrers and in dismissing......
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Malsby & Co v. Studstill
...jurisdiction to grant equitable relief at the instance of the plaintiff against a defendant who resides in another county. "Vizard v. Moody, 115 Ga. 491, 41 S. E. 997; Etowah Milling Co. v. Crenshaw, 116 Ga. 406, 42 S. E. 709. So, from whatever view point, the superior court of Berrien coun......