42 Ga. App. 402 | Ga. Ct. App. | 1930
Mrs. Alice Hale brought suit in the city court of Atlanta against Georgia Power Company and John A. Metcalf, and alleged: that she, through her agent C. M. McIntyre Sr., contracted with Metcalf for the purchase from him of about thirty acres of land; that after plaintiff contracted for the sale of said land the defendant Metcalf conveyed to defendant Georgia Power Company the right to erect a transmission line through and over said land; that this was a fraudulent scheme between the defendants to injure and damage plaintiff; that soon after plaintiff’s agent moved on said land as a tenant of plaintiff to prepare said land for farming, the Georgia Power Company, through employees and servants, began to erect the transmission line over and through plaintiff’s land; that in so doing it cut down valuable timber and
Defendant Metcalf answered that he told plaintiff’s- agent, C. M. McIntyre Sr., that an easement was granted to the Georgia Power Company for the purpose of erecting a transmission line across said property, and that the same was included in and made a part of the deed executed by defendant and delivered to plaintiff’s agent. The Georgia Power Company in its answer admitted being a corporation and denied all the other allegations of the petition. On motion of plaintiff’s counsel the court ordered that the Georgia Power Company be stricken from the ease as a defendant. The trial resulted in a verdict of $600 in favor of the plaintiff, and defendant Metcalf made a motion for a new trial, which was overruled.
The bill of exceptions assigns error on exceptions pendente lite complaining that the court erred in overruling Metcalf’s motion to dismiss the suit for lack of jurisdiction as to him after the resident defendant, Georgia Power Company, was stricken from the case; and also assigns error on the overruling of the motion for a new trial. The bill of exceptions recites that “When the case came up for trial, the court, on motion of the plaintiff, ordered the case dismissed as to the Georgia Power Company, and the trial proceeded against the defendant John A. Metcalf. After a jury had been selected, and after the plaintiff had introduced evidence and rested her case, the defendant Metcalf moved to dismiss the suit as against him, for the reason that, after it had been dismissed as to the Georgia Power Company, the record showed the court to be without jurisdiction as to the defendant John A. Metcalf.”
In Maddox v. Brooks, 17 Ga. App. 644 (87 S. E. 911), this court held that after the resident defendant is dismissed, “the other defendant may still, prior to verdict (italics ours), raise by demurrer the question of lack of jurisdiction, if his nonresidence appears on
In Ross v. Battle, 117 Ga. 880 (45 S. E. 252), the Supreme Court said: “It is now well settled law in this State that where suit is brought against two defendants, one of whom resides in the county, the court has no jurisdiction of' the nonresident defendant unless the resident codefendant is liable in the action!’ In the case under consideration the resident defendant, -Georgia Power Company, having been dismissed from the case by the plaintiff, is admittedly not liable in the action, and, therefore, under the above decision, the court would have no jurisdiction of the nonresident defendant Metcalf. See also Lester v. Mathews, 56 Ga. 656; Warren v. Rushing, 144 Ga. 613 (87 S. E. 775), and cit. In the case last cited a motion in arrest of judgment was made, and the Supreme Court held that where the resident defendant is not liable,
Since the court erred in overruling the nonresident defendant’s motion to dismiss the petition, the ensuing proceedings were nugatory, and it is not necessary to pass upon the motion for a new trial.
Judgment reversed.