The defendants appeal, asserting that this court has jurisdiction of this appeal for the reason that it involves equitable relief and title to land.
Plaintiff filed suit in the Superior Court of Walker County alleging execution by defendants of a promissory note and deed to secure debt, alleging default in payment, and praying for a rule nisi to require defendants to show *48 cause why a nonjudicial foreclosure proceeding provided for in the security deed should not be allowed to proceed. The defendants reside and the land is located in Walker County.
In their answer and counterclaim, the defendants admitted execution and nonpayment, alleged fraud by plaintiff, and prayed that plaintiff be enjoined from proceeding with foreclosure. The trial court ruled in plaintiffs favor.
The first question to be decided is whether this court has jurisdiction of this appeal.
It is true that having reviewed this case, it may be as easy to decide it on the merits as on appellate jurisdiction. Thus, insofar as economy of judicial time in the case before us is concerned, we should render our decision on the merits.
However, deciding cases on their merits simply because they are docketed in this court, and without regard to the division of jurisdiction as between this court and the Court of Appeals, constitutes a disservice to litigants, lawyers and appellate judges in future cases. A decision of this case on its merits would stand as a physical precedent that this court had jurisdiction, when under our Constitution it does not.
This court has jurisdiction of appeals in those cases specified in Art. VI, Sec. II, Par. IV (Code Ann. § 2-3704) of the Constitution. Insofar as pertinent here, this court has jurisdiction of "all equity cases” and "all cases respecting title to land.”
In the case before us, defendants’ prayer that plaintiff be enjoined from proceeding with foreclosure amounts to a prayer by defendants that the relief sought by plaintiff be denied. If this prayer were treated as making this a case in equity, then every case could be made a case in equity by adding a prayer to the answer that plaintiff be enjoined from obtaining the relief sought in the complaint. Appellate jurisidiction is not so easily manipulated. This is not an equity case.
In interpreting the meaning of the words "all cases respecting title to land” this court frequently has rendered decisions stating that a particular type of case is not a case respecting title to land. For example, the
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following types of cases have been held not to be "cases respecting title to land” so as to confer jurisdiction on this court: Suit to foreclose a materialman’s lien on real estate,
Roberts v. Ga. Southern Supply Co.,
Less frequently, this court has undertaken to state an inclusive definition of "cases respecting title to land.” In
Bond v. Ray,
This problem is complicated by the fact that the phrase "cases respecting titles to land” also appears in the venue provisions of our Constitution where it is provided that "Cases respecting titles to land shall be tried in the county where the land lies . . .” Art. VI, Sec. XIV, Par. II *50 (Code Ann. § 2-4902). See also Code Ann. § 2-3901. These substantially identical phrases should be interpreted harmoniously unless harmonious interpretation renders either provision unreasonable. 1
The problem of identifying cases respecting title to land is further complicated by the fact that equity cases, including equity cases involving land, must be brought in the county where a defendant resides against whom substantial relief is prayed (Code Ann. § 2-4903). It is further complicated by the requirement that suits against joint obligors, joint promissors and joint trespassers residing in different counties may be tried in either county (Code Ann. § 2-4904); i.e., suits against joint obligors, promissors or trespassers residing in the same county are to be brought in the county of residence of the defendants, as provided in Code Ann. § 2-4906.
Moreover, suits against makers of promissory notes are to be brought in the county where the makers reside. Code Ann. § 2-4905.
From the foregoing we conclude that suits which must be brought in the county of residence of a defendant are not cases respecting title to land within the meaning of the venue provision of our Constitution (Code Ann. § 2-4902) and are not cases respecting title to land within the meaning of the provision specifying the jurisdiction of this court (Code Ann. § 2-3704).
This suit by plaintiff seeking a rule nisi to require defendants to show cause why a nonjudicial foreclosure proceeding should not be allowed to proceed (being in essence a suit for declaratory judgment that the foreclosure provisions of the security deed are enforceable) is a personal suit against the defendants which could only be maintained in their county of residence. This suit, therefore, is not a case respecting title to land within the meaning of our Constitution, and *51 being without any jurisdictional basis in this court it is transferred to the Court of Appeals.
Transferred to the Court of Appeals.
Notes
See
Wiley v. Wiley,