Moore, Marsh & Co. v. Medlock , 101 Ga. 94 ( 1897 )

Little, J.

It will be seen from the facts given above, that the defendant in error had filed in the superior court of Gwinnett county an equitable petition praying, among other things, that a suit then pending in the city court of Gwinnett county, brought by the plaintiffs in error against him, should be enjoined, and that the matters involved by the petition and pleas in said case be transferred to the superior court and there fully adjudicated. To this petition the plaintiffs in error filed a demurrer, on the ground that the superior court of Gwinnett county had no jurisdiction to try the case, the petition showing upon its face that the plaintiffs in error were residents of Fulton county and not of Gwinnett county. The error assigned here is that the judge below erred in overruling this demurrer.

To determine properly the question involved, it is necessary to construe section 4950 of the Civil Code in the light of the constitutional provision found in section 5874 of the Civil Code.. After providing in preceding sections for the venue of suits against joint obligors, makers and endorsers, proceedings for divorce, and cases involving titles to land, it is provided by the section just referred to that all other civil cases shall be tried in the county where the defendant resides. It is provided by section 4950, supra, that 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. There is, however, an exception and also a proviso incorporated in the section referred to. The exception is that in cases of injunctions to stay pending proceedings, the petition may be filed in the county where the case is pending, provided that there is no relief prayed as to matters not included in such litigation. In other words, the provision of the statute is, that while petitions for equitable relief must generally be filed in the county of the residence of one of the defendants against whom relief is prayed, yet in cases of injunctions to stay pending proceedings, the petition may be filed in the county where the proceedings are pending, but no relief shall be granted in such equitable petition as to matters which are not included in the litigation sought to be stayed. In the case at bar the plaintiffs in error had filed in the city court of Gwinnett county a common-law proceeding to recover a judgment on three promissory notes alleged to be due by the defendant to the plaintiff. The defendant filed several pleas alleging, among other things, that he had delivered promissory notes on other persons to the plaintiffs as collateral to secure the payment of the notes sued on; that the plaintiffs had neglected to collect such collateral notes, although they could have done so by due diligence ; that the plaintiffs had also given up to the makers such collateral notes and taken others in their stead and had extended the time of payment without his consent; that at the time of making the notes sued on he had executed and delivered to the plaintiffs to secure the payment of such notes a deed conveying the title to a certain lot of land in Gwinnett county. From this and other statements averred to be true in the pleas, he alleged in his equitable petition that the city court of Gwinnett county did. not have jurisdiction to fully adjudicate the case on the equitable defenses set up by him and to afford him full and complete relief; and therefore prayed that the plaintiffs should be enjoined from proceeding further with their common-law suit in the city court, that the case should be adjudicated under his said petition in the superior court, that the notes should be decreed to have been paid, that they should be delivered up and canceled, that the deed given to secure such notes should be declared void, and for general equitable relief growing out of said suit and the defenses thereto as set up in the defendant’s pleas.

The question is, did the superior court of Gwinnett county have jurisdiction to fully determine the case under the allegations and prayer of the petition ? It must be conceded that the city court of Gwinnett county, from its limited jurisdiction, could not fully adjudicate the case under the equities set up by the defendant. The section of the code cited authorizes proceedings for injunction to stay proceedings to be filed in the county where such proceedings are pending. We take it, this, can mean nothing else but that the proceedings may be filed in such a court in the county as has jurisdiction to hear and grant applications for injunctions, which of course is the superior court. If a city court did not have the power and jurisdiction to grant relief under a proper equitable plea, an equitable-proceeding in the superior court of the county where the action, is pending will be entertained in order that the entire controversy may be finally there adjudicated. National Bank of Athens v. Carlton, 96 Ga. 469. It is not intended to be held that defenses of an equitable nature may not be made in city courts but in every instance the evidence offered to sustain such defenses must be such as is admissible in a court of law and under legal rules. English & Co. v. Thorn, 96 Ga. 561. If we take all the allegations averred in the defendant’s plea to be true, it is manifest that a proper adjudication of the case can not be had except by a court having full equity jurisdiction. It is true-that some of the issues raised can be properly adjudicated in the city court; but under the defenses filed to a recovery of a judgment on the notes, an application of equitable rules and principles is involved, and under the statutory provisions to which we have referred, a bill for injunction against a suit at law brought by a non-resident plaintiff will be retained to grant, relief as to all matters involved in a proper settlement of the litigation pending at law. James v. Sams, 90 Ga. 404; Beall v. Rust, 68 Ga. 774. It may be said that there are collateral questions made by the pleas, and that the determination of such collateral questions are mainly the basis of the equitable relief sought. But however this may be, if such questions are properly raised in defense to a pending suit and their consideration is necessary to a full defense and they are included in the litigation, a court of equity will go on to do equity between the parties and will grant substantial relief as to all matters of defense properly included in the litigation enjoined. Such an equitable proceeding is based on the idea that while the plaintiff in the original suit may not he a resident of the county where it is pending, yet when he voluntarily instituted that suit, he gave to the courts of the county where it was instituted jurisdiction of his person sufficient to answer all the ends of justice respecting the suit originally instituted. Caswell v. Bunch, 77 Ga. 504. Such a proceeding, in our opinion, is not aggressive, but when any meritorious ground of defense is set up by a plea, and the adjudication of it would tend more fully to declare and protect the rights of a defendant, and it 'is necessary so to do to enjoin a common-law action pending, an equitable petition for this purpose is properly instituted, and is not held to be aggressive, but strictly defensive to such common-law proceeding. We are of the opinion that a court of equity alone could fully and entirely grant the relief to which the defendant is entitled under the allegations set up in his pleas to the common-law action, assuming them to he true. This is a civil case. Under the constitutional provisions the plaintiffs in error instituted their suit against the defendant in error where he resided, to wit, in the county of Gwinnett. The defendant filed his pleas thereto ; and in holding that the superior court can alone give full and adequate relief under the pleadings, we are in strict accord with the constitutional provision, as we think, which requires such cases to be tried in the county where the defendant resides. The plaintiffs in error here are not the defendants below, nor was it sought to make them defendants by filing the pleas in the city court and then instituting the equitable proceeding. They are still plaintiffs. The defendant in the case in that court is entitled to have all of his defenses adjudicated. The forum which the plaintiffs have chosen has no jurisdiction to fully adjudicate such defenses, and the defendant has sought to transfer the pending case from'the court of limited jurisdiction to a court of general jurisdiction in the same county where the suit was originally brought. The object is to let in and have his defenses adjudicated. "We think his equitable petition for that purpose is in accordance with law, and not violative of the constitutional provision.

Judgment affirmed.

All the Justices concurring.