124 Ga. 633 | Ga. | 1906
Prior to the act of September 12, 1881 (Acts 1880-81, p. 114), the code contained the following section in regard to verifying or certifying bills of exceptions after the time regularly prescribed therefor: “If the judge trying the cause resigns, or otherwise ceases to hold his office as judge, when the bill of exceptions is tendered,
In the case of Marhham v. Huff, 72 Ga. 106, no point was male-as to the time when the judge certified the bill of exceptions, but as-, to the time when the clerk transmitted the bill' of exceptions and. record to this court. In the opinion Chief Justice Jackson made-use of the following language: “It is true that.in 1880 an act was-,
Sometimes parties to suits in equity have been divided into three classes, — formal, necessary, and indispensable parties. Shields v. Barrow, 17 How. 139; Chadbourne v. Coe, 51 Fed. 479, 480; Williams v. Bankhead, 86 U. S. 563, 571. Sometimes the words “necessary” and “indispensable” have been'considered synonymous, and parties in equity have been classified as necessary parties and proper parties. Fletcher’s Eq. Pl. & Pr. §40; Pom. Rem. (2d ed.) 329; Donovan v. Campion, 85 Fed. 71; Lynch v. Rotan, 39 Ill. 14. The Civil Code, §4844, states the rule to be that “generally all persons interested in the litigation should be parties to proceedings for equitable relief.” We need not enter into an extended discussion of the classes of parties to equitable proceedings, or the correct mode of designating them. The test for determining the venue of an equitable action in this State is not made to depend merely on
In Gilbert v. Thomas, 3 Ga. 581, it was held that the words '“civil cases,” thus used, were not intended to apply to or fix the venue of equity causes. This ruling was repeated in Rice v. Tarver, 4 Ga. 571, and it was said: “According to the spirit and analogies of our constitution and laws, and the usage of courts of chancery, the inception of a proceeding in equity-must be in some one county, where, on account of the residence of a defendant, or on some other account, the court has jurisdiction.” On page 582, however, it was ■said: “But because equity causes are not within the limitations of 'the constitution, it does not follow that a complainant in equity 'has a rambling commission (to use the language of the counsel for
The amended constitution adopted in 1861 for the first time specifically referred to the venue of equitable causes. It declared that they “shall be tried in the county where one or more of the • defendants reside, against whom substantial relief is prayed.” Constitution of 1861, art. 4, §2, par. 5 (Code of 1863, §4977). The framers of the constitution doubtless knew of the decisions above cited, and were unwilling to leave the matter as there determined. They did not, therefore, say that equity causes might be tried in any county where a proper party or a necessary party resided, or according to the usages of the courts theretofore, or by seeking to apply analogies, but required further that such cases should be tried in the county where one or more parties resided against whom substantial relief was prayed. Substance, not form alone, was here brought into consideration. If analogy to .the requirement in regard to cases at law could not ordinarily determine by construction the venue further than by looking to the question of proper or necessary parties defendant, the constitution sought to make the analogy still closer by fixing the venue with a view to real sub-•stanee. We do not mean that there must be a sort of testing by •exact measure, or that equity will resort to niceties of difference, as if it determined venue by troy weight. But as between two de.fendants resident in the State, the venue should be in the county
In Alabama there is a statute which requires that an original bill «hall be “filed in the district in which the defendants, or a material defendant resides.” It has been held that a material defendant is a ■defendant who is a necessary party, really interested in the result ■of the suit, and against whom a decree is sought. Gay v. Brierfield, 106 Ala. 615. In another case it is said that “a party is a material ■defendant within the meaning of the rule, whose interest is antagonistic to the complainants, and against whom' relief is prayed.” Waddell v. Lanier, 54 Ala. 440. Story’s Eq. Pl. (10th ed.) §136, after referring to the'rule in regard to necessary parties, says: “In ■a general view, all. parties in interest are the proper objects of the rule. But the nature of that interest must still remain to be ascertained; as well as the point, how far it is liable to be affected injuriously by the decree.” See also Webb v. Parks, 110 Ga. 639; City of Dawson v. Columbia Avenue etc. Trust Co., 197 U. S. 178.
Nnder the original petition the real, substantial controversy was, whether the rates fixed by the railroad commissioners injuriously ■discriminated in favor of shippers in Atlanta against shippers in Savannah, and whether the commissioners were authorized to make the order which they promulgated. It was not alleged that the Tates formerly established and still existing from Savannah to various points were excessive in themselves. But it was alleged that the railroad commissioners issued a circular solely in the interest of the shippers from the city of Atlanta, reducing the rates on certain commodities from .that place to certain other places in the State of Georgia, and that this was “an attempt to injuriously discriminate in favor of the city of Atlanta and the shippers of that city against the interests of the shippers of the city of Savannah and other places in the State of Georgia.” It was further alleged that “said rates, as promulgated in said circular number 305, are made with the single view and purpose to accommodate and give a preference to the manufacturers and shippers of the city, of Atlanta over the
The argument is strongly urged, however, that the Central of Georgia Railway Company is interested; and that this differentiates the present case from those above cited. As already appears, in
Let us now consider some of the decisions of this court, cited by counsel, and by our learned brother of the circuit bench,' in support ■of the position that the venue was in Chatham county. The decision in Rice v. Tarver, 4 Ga. 571, supra, was decided prior to the ■constitution of 1861; and, moreover, the jurisdiction in the copnty where the bill was filed was established by several facts: (1) An action at law had been brought there, which it was necessary to •enjoin; (2) an indorser on a note lived'there, whom it was sought to hold liable as a debtor; (3) the non-resident defendants in Jones and Houston counties did not raise any objection to the jurisdiction, but a codefendant sought to do so for them. The venue being thus ■established, other parties,-necessary or proper, could be joined. In Wynne v. Lumpkin, 35 Ga. 208, it was charged that a collusive •agreement between certain legatees and others was entered into, under which an administrator with the will annexed (who was also named as trustee for one beneficiary) illegally and without authority .-sold land to a non-resident of the State, who purchased with notice, and was in collusion with the administrator and the other, parties; ■that the purchaser went into possession and placed upon the land a ■tenant, who, by his engagement with the purchaser, would pay the
lú Austin v. Raiford, 61 Ga. 125, a bill sought an accounting and decree against both the principal and surety on an administrator’s bond, the latter having also been surety on the bond of a. former 'administrator, and it was alleged that- the two defendants had possessed themselves of the whole estate in controvers3r, but how much each had the complainant did not know, and asked discovery. It was held that the suit was properly brought in the county of the residence of the principal. In DeLacy v. Hurst, 83 Ga. 223, it was held that “The action containing the legal right to have judgment, against D. (who resides in Meriwether county) on his indebtedness.' to the plaintiffs, and the equitable right to have set aside an alleged-fraudulent sale by D. to S. (who.resided in another county), the' superior court of Meriwether county had jurisdiction of the cause.” Clearly, substantial relief was prayed against D., and it appears that, his- grantee was alleged to have colluded with him to delay and defraud creditors. A receiver, the setting aside of the conveyance or .conveyances, and other- relief were prayed; and the decision was,.
In each of the eases of Wright v. Southwestern Railroad Co., 61 Ga. 794, and Mayo v. Renfroe, 66 Ga. 408, the State was the substantial party in whose behalf the execution was proceeding; and as it could not be sued, and therefore the venue could not be fixed with reference'to it, it was held that a bilT’to enjoin the levy could be brought in the county of the residence of the sheriff who was proceeding to act. That this was an exceptional situation, and that the decisions are based on the ground stated, see Rounsaville v. McGinnis, 93 Ga. 581, and Dade Coal Co. v. Anderson, 103 Ga. 810. The remark cited from the concurring opinion of Mr. Justice-Miller in Chicago etc. Railway Co. v. Minnesota, 134 U. S. 460, as. to filing a bill in chancery, has no reference to the question of venue., In our opinion none of the authorities cited to sustain the jurisdiction in Chatham county are sufficient to accomplish that result.
We hold, under the facts of this case, that Chatham county was. not the proper venue, and the objection of the railroad commissioners to the bringing of the cause there was well founded. It needs no discussion to show that if the original suit was not brought, in the proper county, jurisdiction could not be conferred there by the filing of answers in the nature of cross-bills by one or more of' the defendants against the commissioners. The ruling to the effect that where a plaintiff voluntarily submits himself- to a jurisdiction by bringing suit in a certain county the defendant may file an equitable petition against him?, in order to have adjudicated all matters necessary for his complete defense, has no relevancy to this ease. Moore v. Medlock, 101 Ga. 94.
If this equitable proceeding can not properly be brought in Chat-ham county, in what county should it be brought? It is urged by
Inasmuch as we have held that this suit was not properly brought in Chatham county, and that on objection duly made the superior court of that county was without jurisdiction over the persons of the railroad commissioners, and could not render the decree which is
We are aware that decisions determining that a court has no jurisdiction, or that cases are not brought by proper parties, are sometimes spoken of as resting on a technicality, and there is a disposition on the part of some to treat with great indifference, if not actual disdain, everything which they refer to as “technical.” But this spirit may be carried to an extreme. Certainly technical forms and-ceremonies should not be carried to such a point as to hamper or obscure a proper administration of justice. But on the other hand, the laws must be administered according to law, and justice must be determined with proper system and method. A suit must be brought by a person having the right to sue, and against a person who is properly sued; otherwise cases might be decided and rights of the real parties adjudicated in their absence. The right to be sued in the proper county is not merely technical, but is a substantial, constitutional right. On this subject the language of the distinguished jurist ex-Chief Justice Bleckley may well be quoted: “ Those who are impatient with the forms of law ought to reflect that it is through form that all organization is reached. Matter without form is chaos; power without form-is anarchy. The State, were it to disregard forms, <would not be a government, but a mob. Its action would not be administration, but violence.”
Judgment reversed.