Lingo v. Worcester County Institution for Savings

Benham, Judge.

When appellant was notified by the attorneys for appellee that the non-resident appellee was initiating foreclosure proceedings against appellant’s property, appellant asked the superior court of the county in which the land was located to restrain and enjoin appellee from selling the property. After conducting a hearing, the trial court granted appellee’s motion to dismiss for lack of jurisdiction based on improper venue.

“Equity cases shall be tried in the county where a defendant resides against whom substantial relief is prayed.” Georgia Constitution 1983, Art. VI, Sec. II, Par. III. See also OCGA § 9-10-30. “An action to enjoin a foreclosure under a power of sale must be brought in the county where the defendant resides. [Cits.]” Nylen v. Barbaris, 232 Ga. 79 (205 SE2d 303) (1974). An action to enjoin an illegal exercise of a power of sale in a deed to secure debt will lie against a foreign corporation in the county where its attorney in fact is a resident. Martin v. Approved Bancredit Corp., 224 Ga. 550 (2) (163 SE2d 885) (1968). Since appellee was a foreign corporation and its attorney in fact resided in a county other than the one in which appellant filed his petition for equitable relief, the trial court lacked jurisdiction due to improper venue. However, under the Uniform Transfer Rules (251 Ga. 893) (1984)) recently adopted by the Supreme Court, the motion to dismiss based on improper venue must now be treated as a motion to transfer. Long v. Bruner, 171 Ga. App. 124 (318 SE2d 818) (1984). Therefore, we must reverse the trial court’s grant of appellee’s motion to dismiss and remand the action to the trial court for transfer to the appropriate court where venue is proper.

Judgment reversed and case remanded with direction.

Banke, P. J., and Pope, J., concur. Decided June 26, 1984 Rehearing denied August 16, 1984. Janise L. Miller, S. Lee Storesund, for appellant. James E. Boyers, Jr., Carol V. Clark, for appellee.