Gordy v. Levison & Co.

Hill, J.

(After stating the foregoing facts.)

1. We will consider first the question raised by the cross-bill of exceptions; for if the court had no jurisdiction of the parties, the subsequent proceedings were a nullity. Or, if there was jurisdiction as to some of the parties, the question raised in the main bill of exceptions will be considered only with reference to such parties as to whom the court had jurisdiction. It was insisted by the plaintiffs in the court below that jurisdiction had been acquired in the case over Birdsall & Co. and Levison & Co., residents of the State of New York, and their property: (1) by reason of the presence within the jurisdiction of the court and in the hands of Pope & Bennet, as attorneys at law of Birdsall & Co. and Levison & Co., of certain original trade acceptances, issued by the Gordy Lumber Co., some of which were accepted by C. D. Smith of Albany, Dougherty County, and some by John W. Shiver, of Americus, Sumter County, and all of which it was insisted were payable in Albany, Dougherty County, Georgia, where the present suit was brought. It was also insisted that the acceptances, which were claimed by the plaintiffs, were affected and impounded at the beginning of the suit by the temporary restraining order granted by the court at the time of filing the suit, which order had been served on Pope & Bennet personally, the defendants, on the other hand, claiming that the original acceptances had never been, at or since the time of filing the suit, within the jurisdiction of any of the courts of the State of Georgia. (2) By reason of the fact that Birdsall & Co. and Levison & Co. had each filed, in the courts of Georgia, certain suits as set out in the foregoing statement of facts, one by Birdsall & Co. in Dougherty County, and the other by Levison & Co. in Sumter County, Georgia. These suits were upon different acceptances and by different parties. It was further insisted that the court acquired jurisdiction by reason of service by publication. There having been, raised an issue of fact in the case, under the special appearance, motion to dismiss, and plea to the jurisdiction, as to whether or not any-of the acceptances had been, at or since the filing of the suit, at any time in the possession of Pope & Bennet, it was agreed in writing by counsel for all parties in the suit that that issue alone be first submitted to a jury; and the agreement having been approved by the court and ordered filed as a part of the record in the case, the issue was, on April 4, 1923, tried and decided by the jury in favor of the defendants; that is, that none of the trade acceptances had been, at or since the time of the filing of the suit, in the possession of Pope & Bennet, as attorneys for either of the other defendants; and a judgment was entered upon the verdict adjudging the issue in favor of the defendants in the case. There was no exception to this judgment; and we are of the opinion that trying this special issue in connection with the special appearance was not a waiver of jurisdiction. Subsequently, and during the same term of court, the issues of law raised by the special appearance, motion to dismiss, plea to the jurisdiction, and demurrer filed by the defendants came on for a hearing, and the learned trial judge overruled the motion to dismiss the case, and the plea to the jurisdiction ; and also sustained the demurrer to the petition and dismissed it. To the judgment overruling the plea to the jurisdiction and motion to dismiss the petition the defendants by cross-bill excepted.

The general rule is that the courts of this State have no extraterritorial jurisdiction, and cannot make the citizens of other States amenable to their process, or conclude them by a judgment in personam without their consent. Hood v. Hood, 130 Ga. 610 (61 S. E. 471, 19 L. R. A. (N. S.) 193, 14 Ann. Cas. 359). But, as held in Home Mixture Co. v. Woolfolk, 148 Ga. 567 (97 S. E. 637), “A plaintiff who institutes a suit in a county other than the one in which he resides submits himself, for all the purposes of the defense of that suit, to the jurisdiction of the courts of the county in which the suit is pending; and if such suit is pending in a court of limited jurisdiction which, for want of power, cannot afford full relief, the defendant, by petition in equity in the superior court of the county where the suit was instituted, may enjoin the prosecution of the suit and set up and have adjudicated as to the non-resident plaintiff all matters included in such litigation, (a) In such case, if relief is prajred as to matters not included in such litigation, the petition is subject to demurrer on the ground of want of jurisdiction, and may be dismissed if the objectionable prayer is not eliminated. (1) If the relief prayed is confined to matters included in such litigation, the fact that some of the relief cannot be granted because of the absence of necessary parties defendant does not affect the jurisdiction of the court.” The principle ruled in the Woolfollc case is applicable to the case of Birdsall & Co., who brought suit in Dougherty County and voluntarily placed themselves within the jurisdiction of the courts of that county, and they are therefore amenable to the jurisdiction of those courts and their process. As to Pope & Bennet, they are eliminated since the special verdict and judgment unexeepted to, and should be stricken from the case; they are neither proper nor necessary parties. But this is not so as to Levison & Co., who have not sued in Dougherty County, but in Sumter County, on some of the trade acceptances of John''W. Shiver. They have not, therefore, placed themselves within the jurisdiction of the courts of Dougherty County so as to become amenable to their process. So, we are of the opinion that the superior court of Dougherty County has jurisdiction of Birdsall & Co., but not of Levison & Co., there being separate parties and separate causes of action; and therefore the judgment of the court below, holding that the superior court of Dougherty County had jurisdiction of all the defendants, must be affirmed in part and reversed in part.

2. Having held in the preceding division of the opinion that the court did not have jurisdiction of Levison & Co., we are of the opinion that the court was right in sustaining the demurrer filed to the petition, and in dismissing it on account of misjoinder of parties and causes of action. Birdsall & Co. only sued in the city court of Albany on some of the trade acceptances; and it was sought to enjoin in the present action, not only Birdsall & Co., but Levison So Co., the latter having brought suit against John W. Shiver in the city court of Americus on some of the trade acceptances. Thus it will be seen that the causes of action are different and between separate parties; and therefore therfe was a misjoinder of parties and causes of action, and the suit for this reason should be dismissed. Of course, it is well settled that “where there is one common right to be established by or against several, and one is asserting the right against many, or many against one, equity will determine the whole matter in one action.” Civil Code (1910), § 5914; Jefferson Banking Co. v. Trustees, 146 Ga. 383, 390 (91 S. E. 463); East Atlanta Land Co. v. Mower, 138 Ga. 380 (75 S. E. 418); Blaisdell v. Bohr, 68 Ga. 56; First National Bank v. Wiley, 150 Ga. 759 (105 S. E. 308). But the rule laid down in these cases does not apply to the facts of the present case. On the question of the petition in the present case having a misjoinder of parties and also being multifarious, see the following cases: Stuck v. So. Steel &c. Co., 96 Ga. 95 (22 S. E. 592); Osborne v. DeBoard, 115 Ga. 599 (41 S. E. 985); White v. North Ga. Electric Co., 128 Ga. 539 (58 S. E. 33); Martin v. Brown, 129 Ga. 562 (59 S. E. 302); Ansley v. Davis, 140 Ga. 615 (79 S. E. 454); George W. Muller Co. v. So. Seating &c. Co., 147 Ga. 106 (92 S. E. 884); Wilson v. Warde, 149 Ga. 325 (100 S. E. 205); Webb v. Parks, 110 Ga. 639 (36 S. E. 70); Shingleur Co. v. Swift, 110 Ga. 891 (36 S. E. 222); Barney v. O'Byrne, 121 Ga. 516 (49 S. E. 595); Farmer v. Rogers, 88 Ga. 162 (14 S. E. 188); So. School Book Co. v. Ginn, 135 Ga. 733 (70 S. E. 569); Price v. Va. Carolina Chemical Co., 136 Ga. 175 (71 S. E. 4).

Judgment on main bill of exceptions affirmed; on cross-bill affirmed in part and reversed in part.

All the Justices concur, except Bussell, C. J., dissenting. Hines, J., concurs in the result.