1. The joining as defendant of a real-estate agent, as to whom there is no charge of the commission of any unlawful act against the plaintiff irreparable in damages, and against whom only incidental relief is sought, in an equitable action against his non-resident principal, who is the only defendant against whom substantial equitable relief is sought, will not afford jurisdiction in the county of the residence of the agent. This ruling is elaborated in the opinion.
2. In an attempted equitable proceeding, by a subtenant against a nonresident owner of premises, in which the subtenant seeks to retain possession of the property and seeks to enjoin interference with the plaintiff's possession and occupancy, and in which the plaintiff ineffectually seeks to establish jurisdiction in the court by joining the resident renting agent of the owner, jurisdiction will not be established or preserved by an amendment to the petition seeking to oust the plaintiff's tenant, a second subtenant, since any question as to the plaintiff's right to evict such second subtenant is legal and not equitable. Accordingly, such amendment was properly stricken on written motion or demurrer.
3. "Where plaintiff, without first having obtained the sanction of the court, merely files an amendment to his petition in the office of the clerk, which, upon the hearing of the case, the court refuses to allow, the paper does not become a part of the record by merely filing it in the office of the clerk; and if exception is taken to the refusal to allow it, the proposed amendment should be brought up in the bill of exceptions or attached thereto as an exhibit, properly identified, and cannot be brought up by specifying it as a part of the record of which it never legitimately became a part." Simmons v. Freeman, 146 Ga. 118 (2) (90 S.E. 965); Holmes v. Cobb Real Estate Co., 142 Ga. 56 (82 S.E. 496). Accordingly, irrespective of the correctness of the judgment of the court in dismissing the second amendment to the petition as having been offered after the petition had been dismissed, a bill of exceptions which does not contain or attach the amendment as an exhibit presents nothing to this court for consideration.
No. 14977. OCTOBER 7, 1944.
The petition of John H. Payne, brought in Fulton County, alleged that J. B. Hightower, a resident of DeKalb County, owned the building at 75 1/2 Hunter Street, S.W., in Atlanta; that C. G.
Aycock Realty Company, a corporation having a place of business in Fulton County, is acting as Hightower's rental agent for said premises; that the plaintiff resided in unit 3 therein as sublessee under A. S. Johnson, the lessee of Hightower, until August 1, 1939, and thereafter as sublessee of C. H. Robinson, as Southern Employment Corporation; that the plaintiff had subleased unit 2 from Robinson, and had in turn leased that unit to Virgil Hawkins; that Robinson's lease extended from August 1, 1939, to August 1, 1943; that on August 31, 1943, the plaintiff offered to renew his lease and continues to do so, and on that day gave Robinson a check for rent for September, 1943, "and renewal of contract" which was delivered to Hightower and endorsed by him; that in August, 1939, Hightower numbered the units in said building, but now is making a fictitious change in the numbering system "inaugurated by him to his agent, the defendant C. G. Aycock Realty Company, and has elected to say that the plaintiff now occupies units 3 and 4; that Hightower has not renewed his lease to Robinson but is demanding more rent; that on April 7, 1944, C. G. Aycock Realty Company wrote the plaintiff that Hightower had turned said property over to them for the collection of rent, and that Hightower had given the plaintiff notice on March 1st to vacate, and that his rent was $20 a month; that Hightower had executed contracts with other tenants in the building, evidencing an intention on his part to change the unit numbering to evade prior registration of such units with the rent-control division of the Office of Price Administration and to receive an increased rent of $5 a month from the plaintiff for unit 3. The prayers were that the defendants Hightower and C. G. Aycock Realty Company be enjoined from demanding or receiving more rent than they are entitled to receive "under the law," and from interfering with the plaintiff's possession. The petition was dismissed on written motion, specifically raising the question of the jurisdiction of the court, and the plaintiff excepts to that ruling.
While a written motion to dismiss an equitable petition will not be granted unless every material fact on which the motion is founded is apparent in the petition (Bower v. Douglass,25 Ga. 714), yet there is no deviation from this rule in dismissing a petition on written motion specifically
raising the question of lack of jurisdiction, where it appears that the only defendant against whom substantial relief is prayed is a resident of a county other than that in which the petition is brought. Code, § 2-4303; Middlebrooks v. Barron, 150 Ga. 701
(2) (105 S.E. 298); Glenn v. Cauthen, 150 Ga. 784
(105 S.E. 365). The joining as defendant of a real-estate agent, as to whom there is no charge of the commission of any unlawful act against the plaintiff irreparable in damages, and against whom only incidental relief is sought, in an equitable action against his non-resident principal, who is the only defendant against whom substantial equitable relief is sought, will not afford jurisdiction in the county of the residence of the agent.
In Martin v. Gaissert, 134 Ga. 34 (2) (67 S.E. 536), this court stated: "Where a real-estate agent residing in the county in which the suit [against an executor] above referred to is brought is joined as a codefendant with the executor, and the plaintiff seeks an injunction to prevent the agent from paying to the executor rents collected from the property, and an accounting from and judgment against both defendants for rents already collected by them (the rents collected by the agent having been paid to the executor over the protest of the plaintiff): held, that if the relief prayed against the real-estate agent can be obtained, it is collateral to and dependent upon the granting of the main relief sought against the executor, and the superior court of that county has no jurisdiction of the case under art. 6, sec. 16, par. 3, of the constitution of this State, providing that ``Equity cases shall be tried in the county where a defendant resides against whom substantial relief is prayed.'" In Grace
v. Interstate Bond Co., 193 Ga. 810 (20 S.E.2d 131), this court held: "An equitable petition against two defendants residing in this State, brought in the county where one of them resides, from which together with the prayers it is apparent that the only substantial relief sought is against the nonresident defendant, and that the sole resident defendant individually has no connection with the alleged cause of action, and no act or claim by him is involved except as agent of the other defendant, is subject to dismissal for want of jurisdiction." Accordingly, there was no error in dismissing the petition for want of jurisdiction, since it appeared from the petition that the only defendant against whom substantial relief was sought was a resident
of DeKalb County, and not of Fulton County where the suit was brought.
The court did not err in dismissing the petition, or in disallowing the second proffered amendment after such dismissal.
Judgment affirmed. All the Justices concur.