184 Ga. 794 | Ga. | 1937
Lead Opinion
J. T. Laslie filed suit in the superior court of Decatur County, Georgia, against Gragg Lumber Company, a co-partnership, all the partners being residents of said .county; the petition in substance alleging that the petitioner is the owner of
The demurrer being renewed, the plaintiff by amendment alleged that the cutting and removing and carrying away of the timber, as set forth in the original petition, occurred in the months of August, September, October, and November, 1933. He further alleged that the described lands “were in the possession of plaintiff, and possession was evidenced by a fence on a part of the property, by the use and cultivation of a portion of the property and the planting and cultivation thereon of tobacco seed and beds, by using the same as' a pasture for cattle and hogs, by hunting and fishing thereon, by returning the same for and paying taxes thereon, by posting the same with written notices tacked upon trees along the boundary lines, by putting out fires and try
The plaintiff filed another amendment in which he made the following allegation: “Plaintiff does not sue for a trespass to the realty and the consequent diminution of the value of the real estate, but sues in trover for damages for the conversion of the property, the same being timber cut and removed from plaintiff’s lands against his will and without any right or authority on the part of the defendants, and the appropriation by said defendants of plaintiff’s property to their own use in the manner and form alleged.” There was no exception to the allowance of this amendment. To the petition as amended the defendants renewed their demurrer on the grounds that the facts alleged do not warrant or authorize any of the equitable relief prayed for; and that all facts appearing on the face of the petition show that the timber, which is the subject-matter of the complaint, lies and is situated without the State of Georgia. They demurred specially upon various grounds. The judge, without ruling on the special grounds, sustained the general demurrer and dismissed the action, and the plaintiff excepted.
Since the judge did not pass on the grounds of special demurrer, and the sole exception being to the sustaining of the general demurrer, the only question to be considered is as to tire correctness of the ruling dismissing the action on general demurrer. The controlling question is, whether or not the superior court of Decatur County, Georgia, can take jurisdiction of a cause
The question has several times arisen in other jurisdictions, whether a court of equity having jurisdiction of the defendant could enjoin a trespass on lands situated in a sister State; but it has not heretofore been before this court. It has been suggested, however, that in Georgia a court of equity finds authority for such in the Code, § 55-113, which reads as follows: “Equity may enjoin the defendant as to transactions beyond the limits of this State.” The language of that section first appeared in the Code of 1895, together with what is in our present Code as section 37-1304, to wit: “Equity may decree in cases of fraud, of trust, or of contract, although property not within the jurisdiction may be affected by the decree.” Section 4854 of the Code of 1895, and section 5437 of the Code of 1910, is as follows: “A court of equity may enjoin the defendant as to transactions beyond the limits of this State, and may decree in eases of fraud, of trust,
While the original Code section is split up in the present Code (§§ 55-112 and 37-1204), these two sections are not broader than what was covered by the original section, which, properly construed, limited the right to enjoin, foreign actions to cases involving fraud, trust, or contract. The instant case did not involve fraud/ or trust, or contract. Since the question under discussion is not controlled by the Code section or by any statute of this State, and since our own court has never dealt with the proposition, we must apply to its solution such general principles as are applicable in this State, seeking light from the precedents in other jurisdictions; and so doing, we find that it has been very generally held that a plaintiff is not entitled to enjoin in the courts of one State a trespass on lands in another, for the reason that the trespass is for an injury done to the realty itself. In so far as the suit at bar sought injunctive relief, the plaintiff had no case,
The earliest American decision holding that an action ex delicto based upon a tort against real property is local, and can not be maintained in a State other than the one in which the land is located, is the case of Edward Livingston v. Thomas Jefferson, 1 Brock. 203, 15 Fed. Cas. (No. 8411), 660. It was decided in 1811 by the Circuit Court of the United States for the District of Virginia. Tyler, District Judge, and Marshall, Chief Justice, concurred, each writing an opinion. It was an action for trespass brought by Livingston, a resident of Louisiana, against Jefferson, a resident of Virginia, for injuries to lands lying in the State of Louisiana. The court sustained a demurrer filed by the defendant, and dismissed the case, on the ground that such an action was transitory, and could not be maintained in a court sitting in Virginia. The Chief Justice criticised the rule of law which controlled his decision, and only with reluctance gave his assent to it. He could see no rational basis for it other than a technical one; and, after arguing against the distinction which courts and law writers make between a suit to enforce a contract respecting lands in another State, and an action of trespass, he said: “If this distinction be established; if judges have determined to carry their innovation on the old rule, no further; if, for a long course of time, under circumstances which have not changed, they have determined this to be the limit of their fiction, it would require a hardihood which I do not possess, to pass this limit. This distinction has been repeatedly taken in the books, and recognized by the best elementary writers, especially Judge Blackstone, from whose authority no man will lightly dissent. 3 Bl. Comm. 29-1. See also Mr. Chitty’s note (4) in his edition of Blackstone (volume 2, 233). He expressly classes an action for a trespass on lands with those actions which demand their possession, and which are local, and makes only those actions transitory which are brought on occurrences that might happen in any place. From the cases which support this distinction no exception, I believe, is to be found among those that have been decided in court on solemn argument.”
But an amendment was filed, as follows: “Plaintiff does not sue for a trespass to the realty and the consequent diminution to the real estate, but sues in trover for damages for the conversion of the property, the same being timber cut and removed from plaintiff’s lands against his will and without any right or authority on the part of the defendants, and the appropriation by said defendants of plaintiff’s property to their own use in the manner and form heretofore alleged.” The petition here expressly disaffirms an intention to sue for injuries to the realty, and instead the plaintiff elects to sue in trover for the conversion of the timber severed from the realty. This is no shadowy distinction, but one of substance. The statement of Judge Powell, in Milltown Lumber Co. v. Carter, 5 Ga. App. 344, 347 (63 S. E. 270), rests upon solid ground. Said he: “A landowner whose standing timber has been cut and carried away by a trespasser has his election among a number of remedies for the redressing of the injury. There-is, of course, the
When the amendment last referred to, in the instant case, was offered, the judge passed an order allowing it subject to demurrer. Thereupon the defendants renewed their demurrer to the petition as amended, one ground of which was that the amendment set forth a new cause of action and constituted a complaint different from the one originally sued on; but the record is silent as to any motion to strike the amendment. In such a situation, though the judge allowed it subject to demurrer, since the petition as amended set forth a cause of action, the action should not have been dismissed on the ground that the amendment added a new cause of action. Dyson v. Southern Ry. Co., 113 Ga. 327 (4) (38 S. E. 749). In Shingler v. Shingler, 184 Ga. 671 (192 S. E. 824), this court held that objections to a petition on the ground of misjoinder of causes of action must be raised by special rather than by general demurrer. Considering the allegations of the petition, in connection with that part of the amendment quoted above, we construe the present action to be a suit in trover, together with a prayer for injunction. It will be remembered that in the instant case no ruling is invoked on the special demurrers. Under the law of this State relating to pleading, we are of the opinion that as against a general demurrer an action for the conversion of timber severed from the land, and a prayer for injunctive relief against the further cutting of the timber, could be
Judgment reversed.
Dissenting Opinion
dissenting. The action is personal, as distinguished from a proceeding in rem. 1 R. C. L. 324, §§ 10, 13. 1 C. J. S. 943, 944, 1148, §§ 1(f), 5, 6, 52. In so far as it refers to injunction, it is strictly in personam. 14 R. C. L. 307, § 4, notes 16, 17. Being so, the action for injunction to prevent cutting of timber on land in Florida was maintainable in Georgia, where the defendant resides and has been personally served with the process of the court. The courts of Florida could not enjoin the defendant resident of Georgia on constructive service. In these circumstances, if the courts of Georgia could not enjoin only because the land was in Florida, the plaintiff would be in the position of, having a right which the courts could not enforce. A situation against which the law thus provides: “For every right there shall be a remedy, and every court having jurisdiction of the one may, if necessary, frame the other.” Code, § 3-105.