110 Ga. 20 | Ga. | 1900
Six tracts of land in Schley county, belonging to Seaborn Montgomery, were sold by William Allen, the sheriff of that county, on the first Tuesday in December, 1899, under an execution in favor of A. L. Richardson, a non-resident
At the hearing of the application for injunction, it appeared that the sheriff had conveyed the lands to Coker before the petition was filed, but whether or not Coker had been placed in possession of the lands was a matter as to which the evidence-was conflicting. The judge granted an order restraining the sheriff and Coker “from interfering with the possession of S, Montgomery (or any tenant or tenants holding under- him) of said lands set out and described in the petition, or doing any act under or by virtue of said sale complained of that would interfere with such possession and control.” One ground of Coker’s demurrer was that he was the only defendant against whom any substantial equitable relief was prayed, and that accordingly the superior court of Schley county had no jurisdiction of the case,, so far as it related to him, because he resided in the county of Rulton. In the bill of exceptions the point is distinctly made that the court erred in granting the injunction, because, for the-reasons stated in the demurrer, it had no jurisdiction in the case. As we are of the opinion that this point was well taken,, there is no occasion for setting out the evidence pro and con which Avas introduced at the hearing, or for dealing with any other question -in the case save that just indicated.
In Caswell v. Bunch, 77 Ga. 504, this court, in view of the-constitutional requirement that equity cases must be tried in the-county Avhere some defendant resides against Avhom substantial relief is prayed, held that “Where a bill was filed to set aside-certain sheriff’s deeds, not in the county of the residence of the grantee therein, but in the county of the residence of the sheriff, it was demurrable for want of jurisdiction.” The principle laid down in the case just cited was followed in Rounsaville v. McGinnis, 93 Ga. 579, and was approved in Dade Coal Co. v. Anderson, 103 Ga. 809. In the present case the sheriff was a mere nominal party to the deed; and as he had no personal bar
It is equally clear that Montgomery’s petition could not properly be entertained by the superior court of Schley county because of the allegations and prayer thereof relating to the petitioner’s claim for damages growing out of the alleged stubborn litigiousness of the defendants. The petition makes no case at all for the recovery of such damages. It does not allege facts showing that 'even Coker had been stubbornly litigious, much less that the sheriff, a mere nominal party to this proceeding, was in any way answerable for such damages, either upon the idea that he had by his own wrongful conduct hindered and retarded the plaintiff in the prosecution of his legal remedies, or upon the theory that similar conduct on the part of Coker was imputable to the sheriff. Indeed, the plaintiff does not go even to the extent of alleging that after the sale any demand whatever was made upon Coker to voluntarily relinquish his claim to the property as the purchaser at the sale, or that the sheriff was requested not to perfect the sale by making deeds to the purchaser. We may safely say, therefore, that this branch of the plaintiff’s case is entirely too frivolous to be treated seriously.
As the action should have been instituted in the county in
Judgment reversed.