164 Ga. 625 | Ga. | 1927
Mrs. A. J. Harvey, the plaintiff in error, was plaintiff in the court below; she is referred to herein as Mrs. Harvey.
Demurrer and answer to this petition were filed by the bank. The grounds of the demurrer were: (1) There is no equity in the bill. (2) The plaintiff has an adequate and complete remedy at law. (3) The petition does not set forth a cause of action. The trial judge sustained the demurrer, presumably on all of the grounds thereof, and dismissed the petition. The plaintiff is now before this court, seeking relief from the. effects of this alleged erroneous judgment.
It is apparent that there is no merit in the first ground of the demurrer. If the contract set up and the fraud alleged by Mrs. Harvey in her petition are admitted for the purpose of the demurrer, she is entitled to all of the equitable relief sought; provided, of course, she has entered the proper forum. We will not presume that the judge based his ruling on this ground alone.
As to the second ground: The constitution fixes the • venue of suits of this character in the county of the residence of the defendant against whom substantial relief is prayed. Civil Code, § 6540. No legislative or judicial tinkering can add to, take
We have apparently reached the vital question in the case: Can the bank, by the mere bringing of a dispossessory warrant proceeding, compel Mrs. Harvey to seek all the equitable relief asked for, in Campbell County? The court holds the opinion that the mere filing of a defense to the dispossessory warrant proceeding in Campbell County would not, without more, deprive Mrs. Harvey of her constitutional right to sue in Eulton. There is no apparent reason why she should not ask for and obtain injunctive relief against continued prosecution of the dispossessory proceeding, pending the determination of her equitable -rights in Eulton superior court. Be this as it may, she did not see fit to defend in Campbell County, but proceeded immediately into the home county of the defendant against whom substantial relief was prayed. She was there without any admission, submission, or waiver so far as
Attention is called to the fact that in Vickers v. Robinson, supra, and in all other decisions in which the principle herein involved is discussed, there .is a seeming assumption that “The plaintiff by institution of such suits submits himself to the jurisdiction of the courts of that county, and the defendant may institute an equitable suit in that county.” We hold, that, before Mrs. Harvey would be deprived of an option of defending in Campbell or suing in Fulton, there must have-been at least a waiver of her right, by submission to the jurisdiction of the courts of Campbell County.
The judgment of the trial court sustaining the demurrer and dismissing the petition is hereby -found to be erroneous.
Judgment reversed.