All actions seeking equitable relief shall be filed in the county of the residence of one of the defendants against whom substantial relief is prayed, except in cases of injunctions to stay pending proceedings, when the action may be filed in the county where the proceedings are pending, provided no relief is prayed as to matters not included in such litigation, and except in divorce cases, venue in which is governed by Article VI, Section II, Paragraph I of the Constitution of this state.
(Orig. Code 1863, § 4095; Code 1868, § 4124; Code 1873, § 4183; Code 1882, § 4183; Civil Code 1895, § 4950; Civil Code 1910, § 5527; Code 1933, § 3-202; Ga. L. 1962, p. 659, § 1; Ga. L. 1983, p. 3, § 48.)
Code Commission notes.- Ga. L. 1962, p. 659, § 1, purporting to amend this Code section to provide that foreclosures and sales under power should be considered pending litigation, was held unconstitutional in Modern Homes Constr. Co. v. Burke, 219 Ga. 710, 135 S.E.2d 383 (1964), as a violation of the separation of powers doctrine of Ga. Const. 1976, Art. I, Sec. II, Para. IV, and the section has therefore been set out without said provision. In addition, reference to Ga. Const. 1976, Art. VI, Sec. XIV, Para. I (now Ga. Const. 1983, Art VI, Sec. II, Para. I) with regard to divorce cases was added for clarification.
Law reviews.- For note discussing problems with venue in Georgia, and proposing statutory revisions to improve the resolution of venue questions, see 9 Ga. St. B.J. 254 (1972). For note, "Venue in Multidefendant Civil Practice in Georgia," see 6 Ga. State U.L. Rev. 427 (1990). For comment on Bennett v. Bagwell & Stewart, 214 Ga. 115, 103 S.E.2d 561 (1958), holding that as a nuisance is a continuing trespass, a court in equity will enjoin it in the county of the resident defendant even though he is only an agent or employee of the nonresident defendant, see 21 Ga. B.J. 564 (1959).
JUDICIAL DECISIONS
Waiver of personal jurisdiction by institution of action.
- The only way in which this section can be reconciled with Ga. Const. 1976, Art. VI, Sec. XIV, Para. III (see Ga. Const. 1983, Art. VI, Sec. II, Para. III), is on theory of waiver, in that a plaintiff by voluntarily instituting the plaintiff's action gives to the court of the county where it is so instituted jurisdiction of the plaintiff's person, sufficient to answer all the ends of justice respecting the action originally instituted. Terhune v. Pettit, 195 Ga. 793, 25 S.E.2d 660 (1943) (see O.C.G.A. § 9-10-30).
Applicability of O.C.G.A.
§ 15-1-2 where third parties involved. - Since former Code 1933, § 3-202 (see O.C.G.A. § 9-10-30) could be reconciled with Ga. Const. 1976, Art. VI, Sec. XIV, Para. III (see Ga. Const. 1983, Art. VI, Sec. II, Para. III), as to venue of equity cases only on the ground of waiver, then former Code 1933, § 24-112 (see O.C.G.A. § 15-1-2), and particularly the latter portion thereof, was directly on point in a case where third parties were involved. Terhune v. Pettit, 195 Ga. 793, 25 S.E.2d 660 (1943).
Filing of petition for injunction in county where proceedings pending not violative of Constitution.
- The constitutional requirement that equity cases shall be tried in the county where a defendant resides against whom substantial relief is prayed is not violated in cases of injunctions to stay pending proceedings, where, jurisdiction having been acquired, it is provided by this section that the petition for injunction may be filed in the county where the proceedings are pending, provided no relief is prayed as to matters not included in such litigation. State Hwy. Dep't v. H.G. Hastings Co., 187 Ga. 204, 199 S.E. 793 (1938), overruled on other grounds, Mitchell v. State Hwy. Dep't, 216 Ga. 517, 118 S.E.2d 88 (1961) (see O.C.G.A. § 9-10-30).
Section must be strictly construed.
- Since this section is an exception to the constitutional requirement of Ga. Const. 1976, Art. VI, Sec. XIV, Para. III (see Ga. Const. 1983, Art. VI, Sec. II, Para. III), it must be strictly construed. Bailey v. Williams, 214 Ga. 702, 107 S.E.2d 209 (1959) (see O.C.G.A. § 9-10-30).
Improper venue.
- Bibb County was not the proper venue for an equitable action against the Department of Public Safety by a Macon attorney given a traffic citation in Tift County for speeding. Higgins v. Department of Pub. Safety, 256 Ga. 288, 347 S.E.2d 562 (1986).
The doctrine of forum non conveniens has never been expressly sanctioned in the Georgia courts. Smith v. Board of Regents, 165 Ga. App. 565, 302 S.E.2d 124 (1983).
Dismissal based on forum non conveniens improper.
- Because the relevant constitutional and statutory authority places venue, absent certain specified circumstances, squarely and solely in the county of the defendant's residence, and because Georgia's courts have not seen fit generally to invoke the doctrine of forum non conveniens, the trial court erred in granting defendant's motion to dismiss based on forum non conveniens. Smith v. Board of Regents, 165 Ga. App. 565, 302 S.E.2d 124 (1983).
Equitable relief prayed must be common to both resident and nonresident defendants.
- This section has been uniformly construed to mean that in order to join a nonresident in equitable action, substantial equitable relief must be common to the nonresident and the resident defendant; in other words, regardless of substantial relief sought against resident defendant and other substantial equitable relief sought against nonresident, the nonresident cannot be joined. I. Perlis & Sons v. National Sur. Corp., 218 Ga. 667, 129 S.E.2d 915 (1963) (see O.C.G.A. § 9-10-30).
This section prevents a multiplicity of suits growing out of the same factual transaction. Bragg v. Gavin, 234 Ga. 70, 214 S.E.2d 532 (1975) (see O.C.G.A. § 9-10-30).
Proper construction of "substantial relief".
- Properly construed, the words "substantial relief" mentioned in Ga. Const. 1976, Art. VI, Sec. XIV, Para. III (see Ga. Const. 1983, Art. VI, Sec. II, Para. III), and in this section refer to substantial equitable relief. Wright v. Trammell, 176 Ga. 84, 166 S.E. 866 (1932); First Nat'l Bank v. Holderness, 189 Ga. 819, 7 S.E.2d 682 (1940); Reynolds v. Solomon, 191 Ga. 1, 11 S.E.2d 201 (1940) (see O.C.G.A. § 9-10-30).
This section applies to bills ancillary to actions at law, as for discovery, injunction, and other procedures. Home Mixture Guano Co. v. Woolfolk, 148 Ga. 567, 97 S.E. 637 (1918) (see O.C.G.A. § 9-10-30).
Section includes nonresidents. Gordy v. Levison & Co., 157 Ga. 670, 122 S.E. 234 (1924) (see O.C.G.A. § 9-10-30).
This section applies to actions to recover possession of land and damages for cutting timber, and for equitable relief relating to land and timber. Brindle v. Goswick, 162 Ga. 432, 132 S.E. 83 (1926) (see O.C.G.A. § 9-10-30).
Equitable action jointly against vendee, in invalid reservation contract, and the vendee's transferee, brought in county of transferee's residence to recover as in trover the article sold and to reform the contract so as to make it include a description of that article, does not lie for lack of jurisdiction. Flemming v. Drake, 163 Ga. 872, 137 S.E. 268 (1927).
Proper grounds to dismiss for lack of jurisdiction.
- A motion to dismiss for lack of jurisdiction is properly granted by the trial court where an equitable action is brought: (1) in which in personam relief is prayed against a nonresident of Georgia; and (2) in which no substantial relief is prayed against a resident of the county where the action is brought. Roberts v. Markin, 225 Ga. 352, 168 S.E.2d 576 (1969).
Each case involving this section must be determined on its particular allegations, and must be decided on the nature, extent, and kind of equitable relief sought and the relationship between the parties to the action. First Nat'l Bank v. Holderness, 189 Ga. 819, 7 S.E.2d 682 (1940) (see O.C.G.A. § 9-10-30).
Intention of pleader determines whether action based on equity or title to land.
- A rule, perhaps the cardinal rule, by which to determine whether an action is based on equity or title to land is to ascertain the intention of the pleader; where the pleader's intention is not clearly manifest as to what form of action is relied on in the petition, the courts will prima facie presume that the pleader's purpose is to serve the pleader's best interest, and will construe the pleadings so as to uphold and not to defeat the action. Cook v. Grimsley, 175 Ga. 138, 165 S.E. 30 (1932).
Allegations determinative of equitable nature of action.
- If the allegations in a petition are sufficient to show that the plaintiff can recover on the plaintiff's title alone without the aid of a court of equity, the case is one of ejectment or complaint for land; but if this is not the case, and equitable aid is necessary, the petition is equitable in character. Cook v. Grimsley, 175 Ga. 138, 165 S.E. 30 (1932).
Court without authority to grant relief as to nonresident defendant in action on title to lands.
- In action strictly respecting title to lands, and which therefore is brought in the county in which the land is situated, the court has no jurisdiction to grant equitable relief as to a defendant who is a resident of another county in this state. Cook v. Grimsley, 175 Ga. 138, 165 S.E. 30 (1932).
Equitable petition to subject land to judgments properly brought in county of defendants' residence.
- An equitable petition against a man and his wife for the purpose of subjecting to judgments against the former, held by the plaintiffs, land to which the wife, as alleged, fraudulently and in collusion with the husband claimed title in order to defeat the collection of the plaintiff's claims, was properly brought in the county of the residence of the husband and wife, although the land was situated in another county; such an equitable petition was not a suit "respecting title to land," within the meaning of Ga. Const. 1976, Art. VI, Sec. II, Para. IV (see Ga. Const. 1983, Art. VI, Sec. VI, Paras. II, III, and V). Builders' Supply Co. v. Hobbs, 169 Ga. 777, 151 S.E. 485 (1930).
Equitable action to remove cloud from title improperly brought in county where no defendant resided.
- Action to remove from the record a certain year's support proceeding as a cloud upon the title of described land in plaintiff's possession was one in equity and not one respecting title to land, and should have been brought in the county of a defendant against whom substantial relief was sought; since the action was brought in a county where neither defendant resided, the court was without jurisdiction of the subject matter and such jurisdiction could not be conferred by consent or waived by the parties. Sweatman v. Roberts, 213 Ga. 112, 97 S.E.2d 320 (1957).
Constitutionally required county site of equity cases.
- Under Ga. Const., Art. VI, Sec. XIV, Para. III (see Ga. Const. 1983, Art. VI, Sec. II, Para. III), and former Code 1933, § 3-202 (see O.C.G.A. § 9-10-30), equity cases must be tried in the county where a defendant resided against whom substantial equitable relief was prayed. Harper v. Gunby, 215 Ga. 466, 111 S.E.2d 85 (1959).
Substantial relief prayed determinative of jurisdiction.
- The essential fact necessary to confer jurisdiction is not that a defendant residing in the county has a substantial interest in the litigation, but whether or not substantial relief is prayed against such defendant. First Nat'l Bank v. Holderness, 189 Ga. 819, 7 S.E.2d 682 (1940); Planters Cotton Oil Co. v. McCurley, 199 Ga. 104, 33 S.E.2d 270 (1945).
If substantial relief is prayed against all defendants, action may be brought in county of any of the defendants. Reynolds v. Solomon, 191 Ga. 1, 11 S.E.2d 201 (1940).
Site of action praying relief against defendants residing in different counties.
- If substantial relief prayed is against two or more defendants residing in different counties, action may be brought in the county of the residence of either. O'Hara v. Jacobs, 191 Ga. 5, 11 S.E.2d 199 (1940).
Venue was proper in Echols County, even though the complaint sought additional relief against the DeKalb County Tax Commissioner, who resided in DeKalb County, as the complaint sought substantial relief against the Echols County Tax Commissioner, who, resided in Echols County; the complaint sough declaratory and injunctive relief seeking to prevent the duplicate collection of ad valorem taxes by the two Tax Commissioners. Scott v. Prime Sales & Leasing, Inc., 276 Ga. App. 283, 623 S.E.2d 167 (2005).
No jurisdiction where action brought in county where no "substantial relief" defendant resides.
- Where a petition seeking equitable relief is brought in a county where no defendant resides against whom substantial relief is sought, and in a county other than the residence of the only defendant against whom substantial relief is sought, the court is without jurisdiction, and the petition should be dismissed on demurrer (now motion to dismiss), raising that question. First Nat'l Bank v. Holderness, 189 Ga. 819, 7 S.E.2d 682 (1940).
Court of county where either of two coexecutors resides has jurisdiction to decree accounting, etc.
- The superior court of a county in which resides either of the two coexecutors against whom substantial relief is prayed, is clothed with jurisdiction to decree an accounting, and under such circumstances and in the exercise of such jurisdiction it may set aside a judgment obtained by fraud which might be interposed as a bar to the equitable proceeding, which invokes an accounting between the guardians and their ward and the consequent abrogation of the alleged settlement which was obtained by fraud. Jordan v. Harber, 172 Ga. 139, 157 S.E. 652 (1931).
Venue of action brought by administrator against heirs and their attorney in county of latter.
- Where action instituted by an administrator against heirs at law and their attorney alleged a contingent interest of the attorney in the subject matter of action; and, though contingent upon recovery for the attorney's clients, it was a substantial interest in the property alleged to be in the hands of the administrator for distribution among the heirs, and afforded grounds for equitable relief against the attorney as such action was in equity, venue was properly laid in the county of the residence of the attorney at law. Reynolds v. Ingraham, 179 Ga. 398, 175 S.E. 918 (1934).
Venue for injunction action properly in county of one of joint defendants in trespass.
- Where a petition for injunction, brought in the county where one defendant resides, seeks relief against joint trespasses by all of the defendants, the court is not without jurisdiction, even though all except the one defendant are residents of other counties, and even though the resident defendant, as an employee or agent of other defendants, may have been acting only under their command or authority in the commission of the trespasses. Hoch v. Candler, 190 Ga. 390, 9 S.E.2d 622 (1940); Baggett v. Linder, 208 Ga. 590, 68 S.E.2d 469 (1952).
Action for injunction against several defendants properly brought in county of any defendant.
- Where a petition for injunction brought in the county where one defendant resides, seeks to restrain a continuing trespass which all of the defendants are committing, the court is not without jurisdiction to grant such relief, even though all except the one defendant are residents of other counties in the state. Bennett v. Bagwell & Stewart, Inc., 214 Ga. 115, 103 S.E.2d 561 (1958).
Only waiver or voluntary submission permits trial in county other than defendant's residence.
- Only through waiver or voluntary submission to the courts of another county may a trial take place in a county other than that of the defendant's residence. Terhune v. Pettit, 195 Ga. 793, 25 S.E.2d 660 (1943).
Petition for cancellation of deeds and other equitable relief properly brought in county of grantee or grantor.
- A petition for injunction, cancellation of deeds, and other equitable relief, in which it is sought to have a conveyance of land delivered up and cancelled, may be brought in the county of the residence of the grantee or in that of the grantor. Planters Cotton Oil Co. v. McCurley, 199 Ga. 104, 33 S.E.2d 270 (1945).
Action to decree title to land properly brought in county where "substantial relief" defendant resides.
- An equitable action against three defendants, two resident and one nonresident, seeking to have equity decree title in the plaintiffs to land lying in the county of the action, not being one respecting title to land, must be brought in the county where one of the defendants against whom substantial relief is prayed resides. Empire Land Co. v. Stokes, 212 Ga. 707, 95 S.E.2d 283 (1956).
Administratrix's action against several defendants properly in county of any "substantial relief" defendant.
- Where the plaintiff administratrix alleged that the defendants entered into a conspiracy to fraudulently procure a transfer to them by the decedent of all of the decedent's real and personal estate, that the confederates had made a division of the fruits of their conspiracy and accordingly prayed for appropriate substantial equitable relief against each for the benefit of the estate, the defendants were properly joined in the equitable action and venue was laid in a county where any one of the defendants resided against whom substantial equitable relief was prayed. Hayes v. Hayes, 214 Ga. 624, 106 S.E.2d 790 (1959).
Court without jurisdiction where no substantial relief prayed against only defendant of county.
- Where no substantial equitable relief was prayed against the only defendant who was a resident of Murray County, and the only defendants against whom substantial equitable relief was prayed were nonresidents of Murray County, the Superior Court of Murray County was without jurisdiction to entertain the equitable petition and should have sustained the general demurrer (now motion to dismiss). Harper v. Gunby, 215 Ga. 466, 111 S.E.2d 85 (1959).
Original proceedings must be filed in superior court, and not a court of limited jurisdiction. Moore, Marsh & Co. v. Medlock, 101 Ga. 94, 28 S.E. 836 (1897).
Petition for injunction must show that original plaintiff has consented to jurisdiction of court. Crawley v. Barge, 132 Ga. 96, 63 S.E. 819 (1909); Stone v. King-Hodgson Co., 140 Ga. 487, 79 S.E. 122 (1913).
Mere fact of praying injunction against defendant does not, in all events, confer the right to file the equitable petition in the county of the defendant's residence, and to draw to that county residents of other counties. First Nat'l Bank v. Holderness, 189 Ga. 819, 7 S.E.2d 682 (1940).
To be pending proceeding within meaning of this section, there must be an action of some nature. Modern Homes Constr. Co. v. Burke, 219 Ga. 710, 135 S.E.2d 383 (1964) (see O.C.G.A. § 9-10-30).
Pending action was created by proceeding instituted under former Civil Code 1895, §§ 4813, 4814, and 4815 (see O.C.G.A. §§ 44-7-50,44-7-51, and44-7-53), to evict one from the possession of land, wherein a counter-affidavit had been filed and the issue raised. Townsend v. Brinson, 117 Ga. 375, 43 S.E. 748 (1903); Ellis v. Stewart, 123 Ga. 242, 51 S.E. 321 (1905); Bedgood v. Carlton, 145 Ga. 54, 88 S.E. 568 (1916); Vickers v. Robinson, 157 Ga. 731, 122 S.E. 405 (1924).
Bail trover proceeding is a pending action within meaning of this section. Bernstein v. Higgenbotham, 148 Ga. 110, 96 S.E. 1 (1918) (see O.C.G.A. § 9-10-30).
Pending proceeding is created by claim interposed to sale of land. Merchants' Bank v. Davis, 3 Ga. 112 (1847); Thomason v. Thompson, 129 Ga. 440, 59 S.E. 236, 26 L.R.A. (n.s.) 536 (1907).
Interposition of claim by third person does not inure to defendant in fi. fa. Ray v. Home & Foreign Inv. & Agency Co., 106 Ga. 492, 32 S.E. 603 (1899); Thomason v. Thompson, 129 Ga. 440, 59 S.E. 236, 26 L.R.A. (n.s.) 536 (1907); Keith v. Hughey, 138 Ga. 769, 76 S.E. 91 (1912).
Venue to enjoin levy and sale absent allegation of misconduct lies in county of plaintiff in fi. fa.
- Venue of an equitable petition to enjoin the levy of an execution and the sale of the land levied upon, where no misconduct on the part of the levying officer is alleged, is in the county of the residence of the plaintiff in fi. fa., if a resident of this state, the levying officer not being a necessary party; and this applies also to a prayer for cancellation of a transfer of the execution by the levying officer, the marshall and the clerk of the superior court being mere nominal parties. Interstate Bond Co. v. Lee, 182 Ga. 238, 184 S.E. 866 (1936).
Action to dispossess one of land brought in county of defendant's residence is pending proceeding.
- Proceeding to dispossess one from the possession of land, wherein a counter-affidavit and bond have been filed and the papers returned to the superior court of the county of the defendant's residence for trial of the issues raised, is, until disposed of, a pending proceeding within the exception provided in this section. West View Corp. v. Thunderbolt Yacht Basin, Inc., 208 Ga. 93, 65 S.E.2d 167 (1951) (see O.C.G.A. § 9-10-30).
Fieri facias on property and interposition and return of claim not operative as waiver of jurisdiction.
- Where a fi. fa. is levied on property and a claim is interposed and returned to the proper court for trial, this does not operate as a waiver of jurisdiction by the claimant as to all the world, so as to authorize the original defendant in fi. fa. to file an equitable petition in the county where the claim is pending, asserting title in the claimant, and seeking to obtain equitable relief against the claimant, and, as a part thereof, to enjoin the execution and claim action, regardless of the residence of any person against whom substantial relief is sought. Bailey v. Williams, 214 Ga. 702, 107 S.E.2d 209 (1959).
Levy of execution to foreclose lien on personalty does not create pending proceeding within the meaning of this section. Mays v. Taylor, 7 Ga. 238 (1849); Rounsaville v. McGinnis, 93 Ga. 579, 21 S.E. 123 (1894); Dade Coal Co. v. Anderson, 103 Ga. 809, 30 S.E. 640 (1898); Macon Nav. Co. v. Stallings, 110 Ga. 352, 35 S.E. 647 (1900); Railroad Comm'n v. Palmer Hdwe. Co., 124 Ga. 633, 53 S.E. 193 (1906); Malsby & Co. v. Studstill, 127 Ga. 726, 56 S.E. 988 (1907) (see O.C.G.A. § 9-10-30).
Issuance and levy of distress warrant does not create pending proceeding within meaning of this section. Wooley v. Georgia Loan & Trust Co., 102 Ga. 591, 29 S.E. 119 (1897); Townsend v. Brinson, 117 Ga. 375, 43 S.E. 748 (1903) (see O.C.G.A. § 9-10-30).
Advertising and preparing for sale under power conferred in security deed does not create pending proceeding within meaning of this section. Meeks v. Roan, 117 Ga. 865, 45 S.E. 252 (1903); John Hancock Mut. Life Ins. Co. v. Baskin, 179 Ga. 86, 175 S.E. 251 (1934); Millen Hotel Co. v. Chastaine, 183 Ga. 172, 188 S.E. 4 (1936); Modern Homes Constr. Co. v. Burke, 219 Ga. 710, 135 S.E.2d 383 (1964) (see O.C.G.A. § 9-10-30).
Submission by plaintiff to equitable jurisdiction of court where action brought.
- Where a party institutes a proceeding in a county other than that of the party's residence, against a person residing in such county, the person submits oneself, to the extent of such action, to the equitable jurisdiction of the superior court of the county in which the action is brought. Caswell v. Bunch, 77 Ga. 504 (1886); Townsend v. Brinson, 117 Ga. 375, 43 S.E. 748 (1903); Keith v. Hughey, 138 Ga. 769, 76 S.E. 91 (1912); Bailey v. Williams, 214 Ga. 702, 107 S.E.2d 209 (1959).
Plaintiffs estopped from denying equitable jurisdiction once invoked.
- Where the plaintiffs themselves brought the petition, invoked the aid of a court of equity to enjoin certain acts by the bank, and filed the action in the county of residence of the bank against which substantial relief was prayed, and the petition alleged that the title to the land in controversy was in the plaintiffs, and the court was asked to decree that the title was legally in them and was not subject to the payment of the indebtedness of another to the bank, the plaintiffs, having invoked the jurisdiction in equity of the court in such county, were estopped from denying that that court had jurisdiction to entertain the case; and if the title to land in another county is involved in the litigation, it is only incidentally so and on account of the fact that the plaintiffs themselves brought the question into the case. Manry v. Farmers' Bank, 177 Ga. 37, 170 S.E. 30 (1933).
Plaintiff's submission to jurisdiction of transferee court as to matters in original action.
- Where a lessor, a resident of one county, sued out dispossessory and distress warrants against the lessee in a municipal court for a city in a different county, and the lessee filed counter-affidavits and bonds, and by operation of law the cases were transferred to the other county's superior court, the municipal court having no jurisdiction to try the issues made by the counter-affidavits, the lessor consequently submitted itself to the jurisdiction of the superior court as to all matters included in the litigation which it instituted. West View Corp. v. Thunderbolt Yacht Basin, Inc., 208 Ga. 93, 65 S.E.2d 167 (1951).
Waiver of jurisdiction extends only to matters in pending litigation.
- A party bringing an action in a county other than that of the party's residence submits oneself, to the extent of such action, to the equity jurisdiction of the county wherein the action is brought; but this waiver of jurisdiction extends only to matters included in the pending litigation, and ordinarily a person not a party to that action cannot take advantage of such waiver. Chamblee Constr. Co. v. Pickett, 227 Ga. 421, 181 S.E.2d 32 (1971).
Defendant may transfer action from court of limited jurisdiction to superior court of same county.
- Plaintiff who institutes action in a county other than the one in which the plaintiff resides, for purposes of the defense of that action, submits oneself to the jurisdiction of the courts of the county in which the action is pending; and if such action is pending in a court of limited jurisdiction, which for want of power cannot afford full relief, the defendant, by proper proceeding in the superior court of the county where the action was instituted, may set up and have adjudicated as to the nonresident plaintiff all matters necessary for a complete defense. Europa Hair, Inc. v. Browning, 133 Ga. App. 753, 212 S.E.2d 862 (1975).
Nonresident of state, suing at law, submits to jurisdiction for equitable relief in same county. Wachovia Bank & Trust Co. v. Jones, 166 Ga. 747, 144 S.E. 256 (1928).
Plaintiff in ejectment must allege defendant is resident of county or nonresident of state.
- Plaintiff in ejectment cannot engraft upon the original petition an amendment in the nature of a petition in equity, praying for a judgment declaring a deed from plaintiff to the defendant, absolute in form, to be a security for debt only, and for an equitable accounting between the parties without alleging that the defendant is a resident of the county in which the action is pending or a nonresident of the state. Hutchings v. Merritt, 165 Ga. 650, 141 S.E. 652 (1928).
Action against resident and nonresident of state to be brought in county of resident.
- All petitions for equitable relief shall be filed in the county of the residence of one of the defendants against whom substantial relief is prayed, and when substantial relief is prayed against two defendants, one alleged to be a resident of this state and the other alleged to be a nonresident, the petition should be brought in the superior court of the county in which the resident defendant resides. Builders' Supply Co. v. Hobbs, 169 Ga. 777, 151 S.E. 485 (1930).
Relief prayed against resident insurer not enough to confer jurisdiction over nonresident assignee.
- Petition filed in Fulton County by named beneficiary in an insurance policy against the insurer, a company having an office and agent in Fulton County, and against an assignee of the policy, a resident of Bibb County, seeking to have the assignment declared void and cancelled, and praying that the insurer be enjoined from paying the proceeds of the policy to the assignee, and for a judgment and accounting against the insurer for the proceeds of the policy, did not pray for such equitable relief against the resident defendant as would draw to the jurisdiction the nonresident defendant for the equitable relief prayed against the nonresident. Reynolds v. Solomon, 191 Ga. 1, 11 S.E.2d 201 (1940).
Exception as to injunctions not applicable to action seeking independent relief against nonresident.
- The exception contained in this section to the effect that injunction actions to stay pending proceedings may be filed in the county where the proceedings are pending, provided no relief is prayed as to matters not included in such litigation, does not affect the venue of an action in which independent relief is sought against one who is a nonresident of the county in which the action is brought, and who is not a party to the action there pending. Terhune v. Pettit, 195 Ga. 793, 25 S.E.2d 660 (1943) (see O.C.G.A. § 9-10-30).
Defendant may transfer action at law by nonresident plaintiff to court of equity.
- Where a nonresident plaintiff brings an action ex contractu in a court of law, which has no authority to entertain an equitable defense, to make another a party to the action, or to allow a setoff arising ex delicto, a court of equity, in the county where the action is pending, may, on petition of the defendant in the pending action, enjoin the action at law in order to allow such defendant to set up and have adjudicated in the equity case, as to the nonresident plaintiff, all matters incidental to such litigation. Commercial Credit Corp. v. Davis, 207 Ga. 562, 63 S.E.2d 353 (1951).
Action at law by nonresident corporation in city court properly enjoined by superior court.
- Where action ex contractu was filed by nonresident corporation against defendant in a city court of the defendant's residence, and such defendant filed an equitable petition in the superior court of the same county against the plaintiff in the pending action, alleging a cause of action ex delicto and the necessity of making another corporation a party to the case, and praying that the action in the city court be enjoined and that the defendant be granted legal and equitable relief, and where the petition was served on the attorneys of record of the plaintiff in the pending action, the court did not err in overruling the general demurrer (now motion to dismiss) of the plaintiff in the pending action. Commercial Credit Corp. v. Davis, 207 Ga. 562, 63 S.E.2d 353 (1951).
Action not brought in county of defendant's residence on matters not included in pending litigation properly dismissed.
- Where the only defendant was a resident of one county, when the plaintiff instituted action against the defendant for equitable relief in the superior court of another county, and the petition prayed for relief as to matters not included in the defendant's pending application to probate a will in solemn form, the court did not err in sustaining the defendant's plea to the jurisdiction of the court and in dismissing the plaintiff's action. Spiller v. Chapman, 216 Ga. 456, 117 S.E.2d 536 (1960).
Some of prayers for substantial equitable relief must be common to both nonresident and resident defendant in order to obtain jurisdiction of the nonresident defendant. I. Perlis & Sons v. National Sur. Corp., 218 Ga. 667, 129 S.E.2d 915 (1963).
Action to enjoin sale by nonresident properly brought in county of nonresident's agent.
- When a nonresident is proceeding to foreclose a mortgage under a power of sale through the instrumentality of an agent resident in this state, an equitable petition filed to enjoin the sale, upon the ground that the power is being improperly exercised, is properly filed in the county of the residence of the resident agent. Smith v. Allen, 222 Ga. 607, 151 S.E.2d 138 (1966).
Petition for recovery ex delicto against nonresidents properly dismissed since not related to pending litigation.
- Where the sole equitable relief sought in petition is a recovery ex delicto against nonresident defendants, to be set off against amounts constituting the basis of several actions in the city court, and the alleged acts of the several nonresidents for which a recovery is sought are matters not included in the subject matter of city court actions, the court did not err in sustaining a demurrer (now motion to dismiss) thereto. Askew v. Bassett Furn. Co., 172 Ga. 700, 158 S.E. 577 (1931).
Right of defendant to have superior court enjoin action at law for equitable setoff.
- If the plaintiff's action is pending in a city court, the defendant, in order to utilize right of equitable setoff may apply to the superior court, as a court of equity, to enjoin the common-law proceeding in the city court and take jurisdiction of the entire controversy between the parties and make a decree doing complete justice between them. Europa Hair, Inc. v. Browning, 133 Ga. App. 753, 212 S.E.2d 862 (1975).
Court of pending action has jurisdiction of cross claim for recovery of legacy.
- If a cross bill (now cross claim) to an action for the recovery of a legacy should be necessary, under this section, the court of the county in which the original action is pending has jurisdiction of it. Bowman v. Long, 27 Ga. 178 (1859) (see O.C.G.A. § 9-10-30).
Court without jurisdiction to make third person party to cross action.
- Where, to an action at law brought by a resident of Polk County against a defendant residing in Fulton County, an answer in the nature of a cross action was filed, in which substantial equitable relief was prayed against the plaintiff and a third party who was also a resident of Polk County, it was erroneous to make the latter, over the third party's objection, a party, and to refuse the third party's motion to dismiss the cross action as to the third party, the ground of such objection and motion being that the court had no jurisdiction to grant as to the third party the relief sought. Terhune v. Pettit, 195 Ga. 793, 25 S.E.2d 660 (1943).
Cited in Waters v. Waters, 167 Ga. 389, 145 S.E. 460 (1928); Hines v. Moore, 168 Ga. 451, 148 S.E. 162 (1929); Hanson v. Williams, 170 Ga. 779, 154 S.E. 240 (1930); Cone v. Davis, 179 Ga. 749, 177 S.E. 558 (1934); Pittman Constr. Co. v. Harper, 180 Ga. 734, 180 S.E. 489 (1935); Sweat v. Arline, 186 Ga. 460, 197 S.E. 893 (1938); Kinney v. Crow, 186 Ga. 851, 199 S.E. 198 (1938); Behr v. City of Macon, 194 Ga. 334, 21 S.E.2d 169 (1942); Huling v. Huling, 194 Ga. 819, 22 S.E.2d 832 (1942); Seckinger v. Citizens & S. Nat'l Bank, 213 Ga. 586, 100 S.E.2d 587 (1957); Modern Homes Constr. Co. v. Mack, 218 Ga. 795, 130 S.E.2d 725 (1963); Modern Homes Constr. Co. v. Mack, 219 Ga. 715, 135 S.E.2d 386 (1964); New Orleans & N.E.R.R. v. Pioneer Plastics Corp., 224 Ga. 228, 161 S.E.2d 294 (1968); Bloodworth v. Bloodworth, 225 Ga. 379, 169 S.E.2d 150 (1969); Carlson v. Hall County Planning Comm'n, 233 Ga. 286, 210 S.E.2d 815 (1974); Tingle v. Georgia Power Co., 147 Ga. App. 775, 250 S.E.2d 497 (1978); Holcombe v. Eng, 163 Ga. App. 343, 294 S.E.2d 568 (1982); Abrams v. Massell, 262 Ga. App. 761, 586 S.E.2d 435 (2003); Owens v. Hill, 295 Ga. 302, 758 S.E.2d 794 (2014).
RESEARCH REFERENCES
Am. Jur. 2d.
- 77 Am. Jur. 2d, Venue, §§ 22, 29.
C.J.S.- 92A C.J.S., Venue, §§ 5, 36, 88, 131 et seq.
ALR.
- National bank as subject to suit outside county of its residence, 86 A.L.R. 47.
Right to lay venue of action against municipality in county other than that in which it is situated, 93 A.L.R. 500.
Right to maintain single suit to foreclose separate mortgages, securing same debt or portions thereof, upon real property in different counties, 110 A.L.R. 1477.
Injunction on ground of inconvenience against prosecuting action in particular state or district, 115 A.L.R. 237.
Right of defendant, upon motion made or renewed after plaintiff has closed his case without proving liability on part of codefendant, to change of venue to the county or district which would have been the proper venue but for the joinder of the codefendant, 140 A.L.R. 1287.
Venue of suit to enjoin nuisance, 7 A.L.R.2d 481.
Proper county for bringing replevin, or similar possessory action, 60 A.L.R.2d 487.
Venue of action for specific performance of contract pertaining to real property, 63 A.L.R.2d 456.
Independent venue requirements as to cross complaint or similar action by defendant seeking relief against a codefendant or third party, 100 A.L.R.2d 693.
Venue of wrongful death action, 58 A.L.R.5th 535.