Carswell v. Scott , 225 Ga. 798 ( 1969 )

225 Ga. 798 (1969) 171 S.E.2d 499

CARSWELL et al.
v.
SCOTT et al.

25484.

Supreme Court of Georgia.

Argued October 15, 1969. Decided December 4, 1969.

Lipshutz, Macey, Zusmann & Sikes, John M. Sikes, Jr., Charles C. Pritchard, for appellants.

L. Paul Cobb, Jr., Merritt & Pruitt, Glyndon C. Pruitt, E. E. Moore, Jr., T. J. Henry, for appellees.

MOBLEY, Presiding Justice.

The appeal is from an order, entered after hearing, dissolving a temporary restraining order. Iola Bell Scott filed an action in the Civil Court of Fulton County against Freeman Carswell and others, seeking damages for personal property loss and injury resulting from the execution of a dispossessory warrant sworn out by the defendants. She asserted ownership and possession of the property on which the trespass was committed. The defendants in the civil court action filed a complaint in the Superior Court of Fulton County, claiming title by deed to the property on which the trespass was alleged to have been committed, and asserting that the deed under which the plaintiff in the civil court claimed was obtained by duress and was void. Carswell sought decree of title, damages, a quitclaim deed from the holder of a security deed on the property, and injunction against the further prosecution of the civil court case. Temporary restraining order was granted, and was dissolved after hearing.

The superior courts have exclusive jurisdiction in cases respecting title to land and equity. Constitution, Art. VI, Sec. IV, Par. I (Code Ann. § 2-3901). The basic dispute between the parties is title to the property on which the trespass was alleged to have been committed. The appellants seek a decree of title and affirmative equitable relief, which cannot be granted in the Civil Court of Fulton County. The civil court action should have been enjoined, and the actions consolidated for trial in a court having jurisdiction of the claims of both parties. Butler v. Mitchell, 128 Ga. 431 (3) (57 SE 764); Kirkpatrick v. Holland, 148 Ga. 708 (98 SE 265); Otis v. Graham Paper Co., 188 Ga. 778 (4 SE2d 824, 125 ALR 333); Crummey v. Crummey, 190 Ga. 774 (1) (10 SE2d 859). It was error to dissolve the order restraining the prosecution of the civil court action by the appellee.

Judgment reversed. All the Justices concur. Felton, J., disqualified.