Beacham v. Beacham

22 S.E.2d 787 | Ga. | 1942

1. Where an equitable petition seeking to have a judgment declared void and canceled is brought in the county where the judgment was rendered, against a defendant who resides in that county, and a defendant who resides in a different county, the jurisdiction of the court of the defendant residing in another county can be raised only by him, either by plea, demurrer, or motion, and can not be urged by a defendant residing in the county in which the suit is instituted. Rice v. Tarver, 4 Ga. 571, 592; Roberts v. Burnett, 164 Ga. 64 (5) (137 S.E. 773). The instant case differs from Beacham v. Cullens, 194 Ga. 739 (22 S.E.2d 508), where a defendant residing in Treutlen County and the resident defendant interposed separate demurrers alleging that no substantial equitable relief was prayed against the defendant who resided in Laurens County.

2. Where a judgment based on a replevy bond was rendered in the city court of Dublin, Laurens County, against C. K. Beacham as principal, and Mrs. Sallie Beacham as surety, in order for the surety to set aside the judgment, on the ground that the signing of her name was a forgery, it is proper to make all parties to the judgment, who would be affected by setting it aside, parties defendant to the proceeding instituted for that purpose. Code, § 37-1004; Miller v. Butler, 137 Ga. 90 (72 S.E. 913).

3. The court did not err, for any reason assigned, in overruling the demurrer interposed by the resident defendant.

Judgment affirmed. All the Justice concur.

No. 14321. NOVEMBER 12, 1942. Mrs. Sallie Beacham instituted in the superior court of Laurens County her action against C. K. Beacham, a resident of Laurens County, and J. B. Warfield, a resident of Bibb County, alleging as follows: J. B. Warfield brought in the city court of Dublin, Laurens County, an action against C. K. Beacham for recovery of two mules; and thereafter C. K. Beacham gave a replevy bond on which the names of C. K. Beacham appeared as principal, and Mrs. Sallie Beacham and Otis Beacham as sureties. This bond was accepted by the sheriff and the property turned over to C. K. Beacham. C. K. Beacham filed his plea and answer denying each paragraph of the bail trover. When the case came on for trial, C. K. Beacham entered of record an agreement with the plaintiff, in which he withdrew his answer and agreed that judgment might be rendered against him unless the case was settled in full within thirty days. At the expiration of thirty days the case had not been settled; whereupon the plaintiff elected to take and did take a money verdict against C. K. Beacham as principal, and Mrs. Sallie Beacham and Otis Beacham as sureties on the replevy bond. The clerk issued an execution based upon said verdict and judgment, which was recorded in the general execution docket in the office of the clerk of the superior court of Laurens County. Thereafter Mrs. Sallie Beacham instituted her petition in equity, in which she stated that she had not signed and had not authorized the signing of the bond, and that she had no knowledge of it until recently. She asked for cancellation of the judgment and execution as a cloud on her property and a menace to her credit. She prayed, (a) that the judgment and execution be declared null and void; (b) that the judgment and execution be declared null and void as to her and be canceled of record; (c) that Warfield be permanently restrained from transferring the judgment and execution, and from any effort to enforce the same; and (d) for general relief.

C. K. Beacham demurred on the grounds: (a) No cause of action against him was alleged; (b) no substantial equitable relief was sought against him, the only resident of Laurens County; (c) and misjoinder of parties defendant. The court overruled the demurrer, and exceptions were taken.