127 Ga. 726 | Ga. | 1907
Malsby & Compaq, a corporation of Eulton county, brought its action in trover against A. C. Studstill, in the superior court of Berrien county, and obtained a judgment against A. C. Studstill as principal, and J. A. Studstill and W. H. Studstill as sureties, on the replevy bond. Upon this judgment execution issued and was levied on certain property of the defendants, which was advertised for sale by the sheriff. Pending the advertisement A. C. Studstill filed in the superior court of Berrien county his petition against Malsby & Company, averred therein to be a corporation with its principal office in Eulton county, Georgia, and
The constitution of this State declares that “equity cases shall be tried in the county where a defendant resides against whom substantial relief is prayed.” Civil Code, §5871. The only defendant other than the ministerial officers in whose hands the fi. fa. is placed for enforcement is a corporation of this State, whose principal office and residence is in a different county from the one where the petition for injunction is instituted. The only relief prayed is that of injunction. The venue of an equitable petition' to enjoin the levy of a fi. fa. which is being enforced at the instance of a plaintiff who is a resident of this State is not in the county of the residence of the levying officer. The sheriff in making the levy and advertising the property for sale is only a •ministerial officer, obeying the mandate of the court, and the relief prayed against him is not substantial, but only incidental to and consequential from the relief to which -the complaining party may be entitled as against the party controlling and directing the execution. The substantial relief is that prayed against the .party enforcing the fi. fa. Nor is jurisdiction given to the county of the sheriff’s residence on the ground that the levy of the execution is a pending proceeding, such as is -referred to in the Civil Code,
However, it is contended that the petition for injunction is ancillary to the motion to set aside the judgment, and the pendency of that motion in the superior court of that county is sufficient to give jurisdiction of the equitable suit. It is very doubtful that the motion to ^set aside the judgment is legally pending in the superior court of Berrien county. This motion is the statutory motion to set aside a judgment. Civil Code, §§3764, 5363. It does not affirmatively appear that it was presented to the judge or filed in term time, but on the contrary the record affords a strong inference that it was instituted in vacation. If it was begun in vacation, the proceeding is a nullity, because a judge of the superior court has no authority to entertain a motion made in vacation to ■set aside a judgment of that court. Haskens v. State, 114 Ga. 837; Chapman v. State, 116 Ga. 598. But conceding that the motion to set aside the judgment was a proceeding in term time, it by no means follows that its pendenc}' in the superior court of Berrien county gives jurisdiction to that court of an equitable petition to enjoin the levy of the fi. fa. until the final disposition of the motion. The principle which authorizes equitable proceedings ancillary- to suits already pending, for purposes of injunction, to be brought in the county where the suit is pending rests on the idea that the plaintiff, by voluntarily instituting his suit, gives the superior court of the county where it is so instituted jurisdiction of his person sufficient to answer the ends of justice respecting the suit originally instituted. Caswell v. Bunch, 77 Ga. 504; Dawson v. Equitable Mortgage Co., 109 Ga. 392. The suit of Malsby & Company against A. C. Studstill was not pending at the time the
Judgment reversed.