Peacock v. NATIONAL BANK & TRUST COMPANY OF COLUMBUS, GEORGIA , 241 Ga. 280 ( 1978 )

241 Ga. 280 (1978) 244 S.E.2d 816

PEACOCK et al.
v.
NATIONAL BANK & TRUST COMPANY OF COLUMBUS, GEORGIA et al.

33301.

Supreme Court of Georgia.

Argued February 14, 1978. Decided April 3, 1978. Rehearing Denied April 25, 1978.

J. Dell Peacock, pro se.

Arthur K. Bolton, Attorney General, Richard L. Chambers, Michael P. Sarrey, Assistant Attorneys General, Hatcher, Stubbs, Land, Hollis & Rothschild, J. Barrington Vaught, Wyatt, Wyatt, Solomon & Gordy, John W. Wyatt, Charles Solomon, Jr., Kelly, Denney, Pease & Allison, John W. Denney, Ronald W. Self, for appellees.

MARSHALL, Justice.

This is an action by the temporary administrator of an estate and members of the decedent's family, against a bank, its attorney, a savings and loan association, and a superior court judge. The complaint sought to void an allegedly fraudulently obtained foreclosure sale of property in Harris County which had been a part of the estate and which the plaintiff administrator had had to regain for the plaintiffs by purchasing it at the sale. The plaintiffs further sought the voidance of the cancellation of a security deed, injunctive relief, compensatory and punitive damages, partition of the property, and court costs. The plaintiffs appeal from the trial judge's sustaining of the nonresident defendants' motions to dismiss for lack of jurisdiction. Held:

1. The present action is not one in rem within the purview of Code Ann. § 37-1411 (Ga. L. 1966, p. 443) et seq., nor otherwise a suit respecting the title to land within the meaning of the Constitution (Art. VI, Sec. XIV, Par. II; Code Ann. § 2-4302), but is an equitable action, and must be brought in the county of the residence of the defendants, as required by the Constitution (Art. VI, Sec. XIV, Par. III; Code Ann. § 2-4303). Hawkins v. Pierotti, 232 Ga. 631 (208 SE2d 452) (1974).

2. Since Code Ann. § 81A-108 (a) (Ga. L. 1966, pp. 609, 619; 1967, pp. 226, 230; 1976, pp. 1047, 1048) requires the complaint to contain facts upon which the court's venue depends, and the appellees have challenged venue by motions to dismiss, supported by affidavits showing undisputed facts proving lack of venue in Harris County, the judgment of dismissal is affirmed. Campbell v. Jim Walter Homes, Inc., 140 Ga. App. 435 (231 SE2d 450) (1976); Williamson v. Perret's Farms, Inc., 128 Ga. App. 687 (2) (197 SE2d 754) (1973) and cits. The dismissal as to Judge Land was authorized for the additional reason of judicial immunity, which was raised in his motion. West End Warehouses, Inc. v. Dunlap, 141 Ga. App. 333 (233 SE2d 284) (1977) and cits.

Judgment affirmed. All the Justices concur, except Hall, J., who concurs in the judgment only.