Wall v. Mercer

• Decision Date: 12 January 1904
• Citation: 46 S.E. 420,119 Ga. 346
• Parties: WALL et al. v. MERCER.
• Court: Georgia Supreme Court

46 S.E. 420

119 Ga. 346

WALL et al. v. MERCER.

Supreme Court of Georgia

January 12, 1904

Syllabus by the Court.

1. What purports to be the evidence introduced in this case before the judge on an application for injunction consisting of numerous affidavits and other papers, being set forth in full as exhibits to the bill of exceptions, without any attempt to abbreviate or brief the same, this court will not consider any assignment of error which is dependent upon the evidence.

2. Joint trespassers residing in different counties may be sued for damages in the county of the residence of either; and joint wrongdoers who reside in different counties, who are insolvent and who threaten to commit trespasses, may, in a proper case, be enjoined from the commission of such wrongs in one petition brought in the county of the residence of any one of them.

3. The allegations of the petition were of such a character as to authorize the granting of the injunction which is complained of.

Error from Superior Court, Terrell County; H. C. Sheffield, Judge.

Suit by J. R. Mercer against J. M. Wall and others. Judgment for plaintiff. Defendants bring error. Affirmed.

W. H Gurr, H. A. Wilkinson, and Perry & Tipton, for plaintiffs in error.

M. C Edwards and J. R. Irwin, for defendant in error.

COBB J.

This was an application for an injunction. Mercer filed his petition, addressed to the superior court of Terrell county against Melton Hay, alleged to be a resident of that county John M. Wall, whose place of residence was alleged to be unknown, "on account of the fact that he is a bird of passage, alternating between Terrell and Worth counties," and N. Powell, alleged to reside in Terrell county. The petition sets forth that Mercer was the owner of a tract of land containing 40 acres, situated in Terrell county, and that Wall, without any pretense of right, set up claim of title to the same property. The petition alleges in great detail negotiations between Mercer and Wall which it is claimed resulted in the purchase by Mercer from the wife of Wall of a tract of land which embraced the 40 acres in dispute. It was alleged that Hay, Wall, Powell, and other persons not named, had colluded to drive the tenant of Mercer from the property in dispute and take possession of the same; that these parties had actually taken possession of a house located on the tract of land; that they threaten to shoot Mercer's tenant if he attempts to enter the house, keep weapons on the premises, have issued a number of warrants for the tenants, and misuse and maltreat them continuously; that Hay, Wall, and Powell are all insolvent; that they are threatening to gather the crop, although they did not plant or cultivate it, are preventing Mercer's hands from cultivating the crop, and are threatening to destroy the crops growing in the field; that on account of the menaces, threats, and unlawful acts on the part of Hay and Wall, Mercer has already suffered damage, and will suffer irreparable damage in the future, unless the defendants are enjoined from acts of violence and trespass of the character already committed. The prayers of the petition were that Hay, Wall, and Powell, and all others in collusion with them, be restrained from keeping possession of the premises, or attempting to keep petitioner and his tenants out; from gathering the crops made on the premises; from having petitioner's tenants and employés arrested for occupying the premises or gathering the crops thereon; from proceeding in any court to seize the premises, or the crop grown thereon; from interfering in any manner with petitioner, his tenants, employés, or other persons acting for him in the performance of such legal acts in connection with the premises; from doing anything in connection with the property, except by appropriate proceedings in this case; and for general relief. Upon this petition the judge granted an order restraining the defendants from doing the acts therein named, and a rule nisi calling upon them to show cause why an injunction should not be granted. At the hearing the defendant Hay appeared, and showed for cause against the granting of the injunction a plea to the jurisdiction, alleging that he was not a resident of Terrell county, but was at the time the petition was filed a resident of the county of Worth; and also an answer, in which he denied all of the material allegations of the petition, so far as they concerned him, alleging that he was an employé of Wall to temporarily occupy the premises referred to, and that he had no interest at all in the matters at issue between Wall and Mercer. Wall appeared, and showed for cause against the granting of the injunction a plea to the jurisdiction, in which he alleged that he did not reside in Terrell county, but was a resident of Worth county, at the date of the filing of the petition; and also a demurrer, in which it was set up that the petition did not allege such facts as to give the court jurisdiction of his person; that there is no equity in the petition; that it appears that Mrs. Wall is a necessary party to the petition; and various other grounds amplifying these grounds of the demurrer; and also an answer, denying the material allegations of the petition, so far as they alleged wrongful acts on his part. Powell filed no de...