Hamil v. Flowers , 133 Ga. 216 ( 1909 )

Atkinson, J.

The corporation was chartered and had its principal office in Early county in this State. Hnder the decision in People’s National Bank v. Cleveland, 117 Ga. 908, and in Jellinik v. Huron Copper Mining Co., 177 U. S. 1, the shares of.stock involved in the controversy were personal property, and, for the purposes of a suit brought to remove a cloud or to quiet the title in this State, their situs was the domicil of the domestic corporation, and a non-resident claiming title or interest therein could be served by publication in such a suit. In addition to the provisions of the code noted in the case of People’s National Bank, supra, reference may also be made to the Civil Code of 1895, §3525, which provides that no stock in a corporation ■ in this State shall be transferred by a foreign executor or administrator until he shall have given notice once a week for four weeks in the paper in which the sheriff’s notices are published, in the county of the principal office of the corporation, of his intention to make such transfer; thus recognizing that for certain purposes the certificates of stock are not treated as wholly disconnected from the company and its situs. Questions of taxation are not here involved. The Civil Code, §4976, declares that where any non-resident or person unknown claims or owns title to or an interest, present or contingent, in any real or personal property in this State, service on such non-resident or unknown owner or claimant may be made by publication in cases affecting such property where proceedings are brought for certain purposes, among which are, “to remove a cloud therefrom or quiet title thereto; to cancel or set aside deeds, mortgages, liens, or encumbrances thereon; to make any decree or order in which the subject of the action is real or personal property in this State, in which a non-resident or unknown person has or may have or claims an interest, actual or contingent, and in which the relief demanded consists wholly or in part in excluding him from an interest therein; where a non-resident or a person unknown has or may have or may claim present, future, or contingent interests in any property in this State.” Section 3070 declares that “Stocks representing shares in an incorporated company holding lands, or a franchise in or over lands, are personalty.” For the purposes indicated there was sufficient situs of the property in Early county to authorize the filing of an equitable petition in the superior court there. An action for a purely money demand can not be maintained in one State against a non-resident by causing service to be made upon him by publication. Pennoyer v. Neff, 95 U. S. 714. There could be no recovery in this action of a money judgment against the executors of Flowers. They were all non-residents, except one. They were appointed in the State of Alabama. There appears to he no administration in Georgia. The 'executor residing in this State has not the control of the entire estate so as to deal with it and subject it by serving him alone. In so far as the petition seeks to recover a money judgment, under the allegations thereof, it can not be maintained. But an effort to do so, though unavailing, did not authorize the dismissal of the entire action. It was argued that the Georgia corporation was not made a party, and that the action could not be maintained without it; but it appears that no question of the necessity of making the company a party has been adjudicated by the trial court. There being sufficient situs of the stock to authorize the filing in the superior court of Early county of an equitable petition for the purposes indicated in the statute above quoted, were the prayers of this petition sufficient to bring it within the purview of the law? A prayer for specific performance and accounting operates rather upon the person than upon the property; but there was also a prayer for general relief. The allegations were to the effect that there was a perfect equity in and right to the stock vested in the plaintiff’s intestate, and after his death in the plaintiff; that this had been recognized in part by the payment of some dividends; and that the mere transfer of the certificates or of the shares on the books of the company was all that remained to be done to evidence the real ownership. In Harris v. Palmore, 74 Ga. 273, it was ruled that where a bill in equity alleged the purchase of land in this State, the payment of the purchase-money, the refusal by the vendor to make a title to the vendee, and that the vendor was a non-resident of the State, and sought to enforce the purchase and quiet the title and possession, the rule that a defendant in equity in this State must be sued in the county of his residence was inapplicable; and the question of jurisdiction was, whether any court of equity in the State had jurisdiction. This question was answered in the affirmative, and it was further declared that “While such a bill may have contained a prayer for specific performance, and that the non-resident defendant be required to make a title to complainant, yet where it also contained a prayer for general relief, a court of equity of this State may grant such relief by a decree that the land is complainant’s.” This may have been a somewhat liberal construction of pleadings, but it went to the substance of the action rather than to the form of its specific prayer. No question of transfer of title to land in Georgia by a foreign will is here involved.

Inasmuch as what has been said is controlling of the question-that the superior court of Early county had jurisdiction, and also of the fact that a general pecuniary judgment can not be obtained against the executors of the estate of Flowers, deceased, it is unnecessary to discuss general questions as to how far or on what terms foreign executors or administrators may sue in this State, or when or to what extent they may be sued if they come within the State. The making of the resident executor a party would certainly not detract from the right to prosecute the action for the purposes hereinbefore mentioned. It follows from what has been said that it was error to vacate the order declaring service to have been perfected on the non-resident defendants, and also to dismiss the petition for lack of jurisdiction.

Judgment reversed.

All the Justices concur.