Reynolds v. Solomon

11 S.E.2d 201 | Ga. | 1940

All petitions for equitable relief shall be filed in the county of the residence of one of the defendants against whom substantial equitable relief is prayed. A petition filed in Fulton County by a named beneficiary in an insurance policy, against the insurer, a company having an office and agent in Fulton County, and an assignee of the policy, a resident of Bibb County, seeking to have the assignment declared void and canceled, and praying that the insurer be enjoined from paying the proceeds of the policy to the assignee, and for a judgment and accounting against the insurer for the proceeds of the policy, did not pray for such equitable relief against the resident defendant as would draw to the jurisdiction the non-resident defendant for the equitable relief prayed against her The court did not err in sustaining the demurrer and dismissing the action as to the non-resident defendant.

No. 13493. OCTOBER 15, 1940. Mrs. Nettie H. Reynolds filed in the superior court of Fulton County an equitable suit against the Franklin Life Insurance Company, a non-resident corporation having an office and agent in Fulton County, and Louise Solomon, a resident of Bibb County. Louise Solomon filed a demurrer questioning the jurisdiction of Fulton superior court as to her. The court sustained the demurrer, and dismissed the action as to Louise Solomon; and the petitioner excepted.

The petition alleged the following facts: The petitioner is the named beneficiary in a $2500 policy of insurance issued by the defendant company on the life of her husband, Harry Elliott Reynolds, who died on January 14, 1940. She is in possession of the policy, has paid all premiums and assessments due thereunder, and has furnished the insurance company with written notice and proof of the death of the insured. She is informed and believes that the insurance company recognizes its liability to her under the policy, but has not paid same because of notice of a paper alleged to be an assignment of said policy to Louise Solomon, a copy of which is attached to the petition. The insurance company denies that its liability extends to the full face amount of the policy. The purported assignment from Harry Elliott Reynolds to Louise Solomon, dated January 4, 1940, is not a valid assignment of the policy, for the following reasons: (1) It was without consideration. (2) Harry Elliott Reynolds did not have sufficient mental capacity to execute the assignment. (3) It was procured through the undue influence and fraud of Louise Solomon. Equity should take jurisdiction in order to avoid a multiplicity of suits. The prayers were (1) that the insurance company be enjoined from paying the proceeds of the policy to Louise Solomon; (2) that Louise Solomon be enjoined from collecting the proceeds of the policy; (3) that the alleged assignment be decreed null and void, and ordered surrendered and canceled; (4) and for judgment in the amount of the proceeds due under the policy.

The insurance company filed an answer in which it alleged that there was a loan of $559.29 outstanding against the policy, and that it was ready to pay the face amount of the policy, less the loan, or $1940.73, to the person entitled thereto; and prayed that it be allowed to pay $1940.73 into court, and thus be relieved of all further liability. Thereupon the petitioner filed what she termed a "response and counterclaim" to the affirmative matter stated in the answer, in which she alleged that she was entitled to an accounting from the insurance company, by reason of the following facts: Under a supplemental agreement, a copy of which is attached to the pleadings, the insurance company agreed to waive all premiums due under the policy in case of the total and permanent disability of the insured. The insured became totally and permanently disabled in 1927, and furnished the company with proper proofs of such disability; but the insurance company required the insured to continue paying the premiums until the time of his death. The premiums were paid under protest and under urgent and immediate necessity. The annual premium on the policy was $58.80, and petitioner is entitled to the refund of the premiums paid in 1928 and each year thereafter, with interest at seven per cent. The exact amount can only be determined by an accounting. If there is a loan against the policy, the petitioner is entitled to an accounting and to have the sums paid in for premiums during the period of total disability applied as and when paid, in satisfaction of any indebtedness due to the insurance company, or, if not applied in satisfaction of the loan, it should be accounted for and returned to the party paying said premiums. The petitioner added prayers, (1) that as beneficiary under the insurance policy she recover and have an accounting of all premiums paid during the period of total and permanent disability, (2) that such premiums be credited against any loan found due against the policy, and (3) that she have judgment for any balance of the premium fund after satisfying the loan, in addition to a judgment for the face amount of the policy. The purported assignment of the policy from Harry E. Reynolds to Louise Solomon recites, among other things, that it conveys "all the first party's rights, title, interest and equity in and to any and all premiums, rebates of premiums, exemptions from payments of premiums arising in his favor or which he may have under said policy of insurance, and all claims and (or) demands of every nature and description which the first party may have for the repayment of any and all sums heretofore paid under said policy." "All petitions for equitable relief shall be filed in the county of the residence of one of the defendants against whom substantial relief is prayed." Code, § 3-202. The words "substantial relief" as used in this section mean substantial equitable relief. Wright v. Trammell, 176 Ga. 84 (166 S.E. 866); Kinney v. Crow, 186 Ga. 851 (2) (199 S.E. 198); First National Bank v. Holderness, 189 Ga. 819 (7 S.E.2d 682). If substantial relief is prayed against all the defendants, the suit may be brought in the county of any of the defendants. The only question presented by this record is whether the petitioner prayed for such substantial equitable relief against the insurance company, which has an agent and place of business in Fulton County, as to authorize making Louise Solomon, a resident of Bibb County, a party defendant to the suit filed in Fulton County. It is apparent from the pleadings that the main object and the chief equitable relief sought is cancellation of the purported assignment of the insurance policy. The petitioner's right to a recovery against the insurance company is dependent upon the validity of the assignment. If the assignment is valid, she is entitled to none of the relief which she seeks against either defendant. But it is insisted that the insurance company is such a necessary party to a suit for cancellation of the assignment as to authorize the suit being brought in the county of its residence. In support of this contention counsel rely onHuey v. National Bank of Fitzgerald, 177 Ga. 64 (2) (169 S.E. 491), where it was said: "In equity cases all persons whose rights and interests are sought to be affected are necessary parties defendant; and where such persons are accordingly made defendants, they are parties against whom substantial equitable relief is prayed, within the rule as to venue in equity cases." However, there is nothing in the present case to show that the insurance company is a "necessary" party to the suit for cancellation. Its rights and interests will not be affected in any event. Its liability under the policy is the same whether the proceeds should be paid to the petitioner or to the assignee of the alleged void assignment. It doubtless desires that the validity of the assignment be determined, in order that it may safely pay the proceeds of the policy to one of the claimants; but this is not such an interest as to make it a necessary party to the suit for cancellation. In the Huey case, supra, the rights of the resident defendant would have been vitally affected by the grant of the equitable relief sought. In the instant case the rights of the resident defendant would have been only incidentally involved by the grant of the relief of cancellation; and therefore with respect to this portion of the suit the insurance company was not a defendant against whom substantial relief was prayed. See Railroad Commission v. Palmer HardwareCo., 124 Ga. 633, 639 (53 S.E. 193); Bradley v. Burns,188 Ga. 434 (2) (4 S.E.2d 147); First National Bank v. Holderness, supra. The prayer for injunction against the insurer is relied on as authorizing the filing of the petition in the county of its residence and drawing to that county the other defendant; but this relief also appears to be merely incidental. As stated in Kinney v. Crow, supra: "It did not appear that any wrong had been committed or threatened by the insurance company as against the plaintiff. If it had paid the insurance money to one who was not authorized to receive it, the plaintiff would not have been hurt." The prayer for injunctive relief against the resident defendant was not sufficient to give the court jurisdiction of Louise Solomon. SeeRailroad Commission v. Palmer Hardware Co., supra. Neither was the prayer for an accounting against the insurance company sufficient to give the court jurisdiction of the other defendant. Assuming that this was a prayer for an equitable accounting, and not an accounting at law, it was merely incidental to the other equitable relief sought, and, like the prayer for injunctive relief, failed to give the court jurisdiction of the defendant residing in a different county. While equity seeks to do full and complete justice, and all parties interested in the subject-matter of a suit should be made parties thereto, the suit must be filed in the county of the residence of a defendant against whom substantial equitable relief is sought. No substantial equitable relief being sought against the resident defendant in the instant case, the court did not err in sustaining the demurrer of Louise Solomon, a resident of another county, and dismissing the action as to her.

Judgment affirmed. All the Justices concur.