25 S.E.2d 660 | Ga. | 1943
Where, to an action at law brought by a resident of Polk County against a defendant residing in Fulton County, an answer in the nature of a cross-action was filed, in which substantial equitable relief was prayed against the plaintiff and a third party who was also a resident of Polk County, it was erroneous to make the latter, over his objection, a party, and to refuse on his motion to dismiss the cross-action as to him, the ground of such objection and motion being that the court had no jurisdiction to grant as to him the relief sought.
The defendant company filed an answer and pleadings in the nature of an interpleader, alleging that Terhune, a resident of Polk County, as administrator of Miss Bramlett, also claimed the stock, and that he had employed counsel to bring action for the stock certificates and the shares of stock represented by them; that the defendant company had no interest whatsoever as to which of said claimants prevailed in establishing his or her title to said shares, but was interested only in having the title thereto adjudicated, so as to avoid having to pay out the value thereof twice. The defendant company prayed that Terhune, administrator, be made a party; that he and Mrs. Pettit interplead and set up their claims to said stock in this suit; that Terhune, administrator, be enjoined from proceeding in any court in this State against the defendant or the plaintiff, Mrs. Pettit, in any action seeking to recover either the stock certificates representing said shares of stock, or in any other action seeking damages from the defendant, or seeking to establish title.
Terhune as administrator pleaded to the jurisdiction of Fulton superior court, and raised the same question by demurrer. The superior court held against his plea and overruled his demurrer, and he excepted.
Terhune, administrator, a resident of Polk County, protested being made a party to the proceeding in Fulton superior court brought by Mrs. Pettit against the Georgia Power Company, a resident of Fulton County, and excepted to the refusal of the court to dismiss the cross-action as to him, on the ground that the court had no jurisdiction to grant as to him the relief sought in the cross-action filed by the Georgia Power Company, which was a petition for interpleader. In the cross-action *795
injunction was prayed for, with a prayer that Mrs. Pettit, and Terhune, administrator, both residents of Polk County, interplead in the suit in Fulton superior court. A petition for interpleader is an equitable proceeding. Bank of Tifton v. Saussy,
In Crawley v. Barge,
The question left open in Crawley v. Barge, supra, reference to which has heretofore been made, was in effect answered by this court in Millsap v. Waco Mercantile Co.,
In view of the above it must be held that it was erroneous to overrule the objection of the plaintiff in error to being made a party, and to refuse to dismiss the cross-action as to him, the ground of such objection and motion being that the court had no jurisdiction to grant, as to him, the relief sought.
Judgment reversed. All the Justices concur.