Where a petition seeking equitable relief is brought in a county other than the residence of the only defendant against whom substantial relief is sought, the court is without jurisdiction, and the action should be dismissed on demurrer raising that question.
No. 13841. SEPTEMBER 9, 1941. REHEARING DENIED SEPTEMBER 26, 1941.
The plaintiffs in this case are Thomas Spalding Hopkins and his wife, Mrs. Margaret Webb Hopkins, the former being a legatee under the will of his deceased father, R. R. Hopkins. The defendants are Mrs. Elizabeth Hopkins Kidd, executrix of the deceased, and others alleged to be his children and grandchildren. The petition was filed in the superior court of Glynn County, Georgia. All of the defendants, except two, are alleged to be residents of said county, one of these being a resident of the State of Louisiana, and the other, Mrs. Elizabeth Hopkins Kidd, alleged to be "of said county, now temporarily sojourning or residing at 742 South Candler Street, Decatur, DeKalb County, Georgia." Attached to the petition is a copy of the will of the deceased, R. R. Hopkins, item 6 of which reads as follows: "The said firm of R. R. Hopkins Son have heretofore conveyed to Mrs. Margaret Webb Hopkins, wife of said Thomas S. Hopkins, a lot of land on St. Simons Island, in said county, and the deed being referred to for description of said lot so conveyed to her. In the event the said Thomas S. Hopkins, or the said Margaret Webb Hopkins, at the time of my death may not have been able to construct and build a home on said lot, and at said time might not have built a home on said lot, in that event my said executors are hereby directed and instructed to aid the said Margaret Webb Hopkins and
said Thomas S. Hopkins in the construction of said building and home for them up to the sum of two thousand dollars, which legacy to her and my said son, Thomas S. Hopkins, of course not to be of force or carried out by my executors in the event that she and said Thomas S. Hopkins have before that time constructed and erected a home on the said lot of land."
Petitioners alleged that they had been unable to build a home on the lot in question, and that after repeated requests and demands made by them upon the said defendant executrix to pay to them the $2000 referred to in said item of the will, so that they could build a home on the lot, she refused and stated that she was not going to pay it to them. They alleged that if she is not restrained and enjoined from exercising the right and power given her by the terms of the will to sell or mortgage the property of the estate, she would so sell it, and thereby necessitate a multiplicity of suits by petitioners against her as to each and every portion of the property of the estate. Their prayers were for process, for appointment of a guardian ad litem for a named minor defendant, that the court render judgment in their favor against the defendant Elizabeth Hopkins Kidd only, as executrix and testamentary trustee, and that she be restrained and enjoined from transferring or conveying any of the corpus of the estate, without first paying to petitioners the $2000 claimed by them under the quoted item of the will.
They amended their petition by referring to and quoting another item of the will, and alleged that the named executrix has had full control of the property of the estate, and will not tell petitioners anything whatsoever about it; and they allege that she is in law bound to account for the same. They list numerous lots of real estate in the City of Brunswick as belonging to the estate, all of the alleged value of $45,000.
The defendant, Mrs. Elizabeth Hopkins Kidd, filed, subject to her plea to the jurisdiction of the court previously filed, her demurrers, general and special, to the petition, upon the following grounds, and others: that the petition as amended sets out no cause of action against her; that it does not authorize a recovery; that there is no equity in the petition; and that it shows that the court has no jurisdiction of the defendant, she being the only defendant against whom substantial relief is prayed.
And the other defendants demurred on the grounds that there is no cause of action alleged against them, no recovery authorized or prayed against them, no equity, and that no affirmative relief is prayed against them.
The court sustained each and every ground of the demurrers and dismissed the action, and the plaintiffs excepted.
It is a familiar rule that pleadings must be construed most strongly against the pleader. So construing the allegations as to the residence of the defendant executrix, it must be held that the petition on its face shows that Mrs. Kidd was a resident of DeKalb County, Georgia. See Crawford v.Wilson, 142 Ga. 734 (83 S.E. 667). In so construing the petition, we are not at variance with plaintiffs' position as to that matter. The brief of their counsel recites: "All of the defendants, excepting two of them, reside in Glynn County; one of the two residing in the State of Louisiana, and the other residing at Decatur, DeKalb County, Georgia." The only relief prayed is against Mrs. Elizabeth Hopkins Kidd, the executrix, who, it is thus admitted in the brief of counsel for the plaintiffs, resides in DeKalb County. Under our constitution, art. 6, sec. 16, par. 3 (Code, § 2-4303), equity cases must be brought in the county of a defendant against whom substantial relief is prayed. An examination of the petition discloses that the only defendant against whom such relief is prayed is Mrs. Kidd, the executrix. The prayers against the other defendants do not ask for any equitable relief against them. See FirstNational Bank of Atlanta v. Holderness, 189 Ga. 819
(7 S.E.2d 682), and Waldrop v. Nolan, 192 Ga. 234
(15 S.E.2d 225).
The plaintiffs' argument in support of their contention that the superior court of Glynn County did have jurisdiction is: (1) That the letters testamentary were issued by the court of ordinary of Glynn County and that court's power over the estate and the executrix's management thereof still exists, notwithstanding the removal of the residence of the executrix to DeKalb County, since it does not appear that the executrix has availed herself of the provisions of the Code, § 113-1901 et seq., which declare in effect that administrators and executors desiring to remove the jurisdiction of their trust from the court of ordinary of the county of the residence
of the intestate or testator to that of their own residence may do so by complying with certain requisitions; (2) that the decision of Morrison v. McFarland, 147 Ga. 465
(94 S.E. 569), and others following it hold that courts of equity have concurrent jurisdiction with the court of ordinary in the administration of the estate of a deceased person in all cases where equitable interference is necessary or proper for the full protection of the rights of the parties at interest; and (3) that the petition in the instant case shows the necessity of the court of equity taking the estate in charge. Let us assume that in all the foregoing the plaintiffs are correct, yet it does not follow that if it be conceded that a case is shown wherein a court of equity has jurisdiction of the subject-matter, that it should exercise it if, as here, no power as to jurisdiction is given to the particular court to which the petition is addressed. It becomes a question of venue; and this is fixed by the constitution, as hereinbefore pointed out. No relief is sought against Mrs. Kidd, personally, but only in her representative capacity as executrix. She in her representative capacity must be sued in equity, if sued alone, in the county of her residence.Lawson v. Cunningham, 34 Ga. 523; Walton v. Gill,46 Ga. 600; Young v. Brown, 75 Ga. 1; Martin v.Gaissert, 134 Ga. 34 (67 S.E. 536); Long v. Stanford,135 Ga. 823 (70 S.E. 645); Radcliffe v. Jones, 174 Ga. 324
(162 S.E. 679). That has not been done. The decisions just cited are applicable to the question whether the instant case was properly brought in the County of Glynn, since no substantial relief is prayed against any of her codefendants. The case ofUsry v. Usry, 82 Ga. 198 (8 S.E. 60), relied on by counsel for plaintiff in error, was not a suit in equity as is the instant case, but was on statutory citation by a ward for final settlement by his guardian. The ruling there made as to venue does not apply to a suit in equity. In Long v. Stanford, supra, it was held that the venue of a suit by a creditor of an intestate person against the administrator is the county of the defendant's residence, and not the county of the administrator's appointment, where the administrator resides in a different county. In delivering the opinion Evans, Presiding Justice, thus disposed of Usry v. Usry: "The case . . does not conflict with this ruling. There a guardian who resided in Glascock County applied to the court of ordinary of McDuffie County for guardianship of the estate of a minor within the jurisdiction
of that court, and upon his appointment duly qualified as such guardian, and received the estate of his ward. The court held that he became a quasi officer of the court of his appointment, and could be cited by his ward to a settlement in the court of his appointment, although a resident of another county. In that case the proceeding was by a court against its officer, asking for an account of his stewardship. The present case is a suit by a creditor of the defendant's intestate, to recover his debt from the defendant as the administrator of his alleged debtor, and falls within the constitutional provision requiring all civil actions, with certain exceptions, to be brought in the county of the defendant's residence."
Other reasons are urged in the brief of counsel why the judgment of dismissal should be affirmed. Counsel for defendants in error in a supplemental brief request us to pass on the other grounds of demurrer, and refer us to Girtman v. Girtman,191 Ga. 173 (11 S.E.2d 782), where we went into the question of jurisdiction and decided that the court had none, and in addition passed on other grounds. The procedure adopted in the Girtman
case was unusual. The petition there filed for the custody of the child was by counsel for petitioner treated as an intervention filed in a suit for divorce between her son and his wife. We held that the intervention there attempted could not be maintained, and then undertook to show that if it were treated as a habeas-corpus suit it could not prevail, on the ground of jurisdiction. In that view of the matter we dealt with the question of jurisdiction in the Girtman case, as well as decided why on its merits the custody of the child could not be given to petitioner. Regardless of the practice followed by this court in the Girtman case, we are of the opinion that when this court rules that a case must be dismissed for lack of jurisdiction in the trial court, it is a sound rule to be followed generally that when this court affirms the judgment of a trial court dismissing an action on the ground that it had not jurisdiction to entertain the same, other questions raised by demurrer should not be dealt with. There may be exceptional cases to the contrary, but we do not regard this as one of them.
There was no error in dismissing the action for lack of jurisdiction of the court to entertain the same.
Judgment affirmed. All the Justices concur.