No. 9870 | Ga. | May 18, 1934
1. “Equity cases shall be tried in the county where a defendant resides against whom substantial relief is prayed.” Civil Code (1910), § 6540.
2. This was a suit in equity for injunction, and was not a suit respecting title to land. Cook v. Grimsley, 175 Ga. 138 (165 S.E. 30" date_filed="1932-07-15" court="Ga." case_name="Cook v. Grimsley">165 S. E. 30).
3. The defendants filed a proper plea to the jurisdiction, and insisted upon the same at the interlocutory hearing. While a plea to the jurisdiction is a matter for trial before a jury, and the judge can not finally pass upon the same at an interlocutory hearing (Dean v. Dean, 178 Ga. 712, 174 S.E. 339" date_filed="1934-04-12" court="Ga." case_name="Dean v. Dean">174 S. E. 339), yet “if it appears clearly to the judge that the suit is brought in the wrong county, he should refuse to grant interlocutory relief, for that reason.” Stallings v. Stallings, 127 Ga. 464, 469 (56 S.E. 469" date_filed="1907-02-18" court="Ga." case_name="Stallings v. Stallings">56 S. E. 469, 9 L. R. A. (N. S.) 593); Jackson v. Southern Flour & Grain Co., 146 Ga. 453 (91 S.E. 481" date_filed="1917-02-14" court="Ga." case_name="Jackson v. Southern Flour & Grain Co.">91 S. E. 481).
4. The defendants in this case did not waive jurisdiction by filing an answer and moving to vacate the previous injunctive orders, their answer having been expressly made subject to their pleas to the jurisdiction. Stallings v. Stallings, supra; McFarland v. McFarland, 151 Ga. 9 (3) (105 S.E. 596" date_filed="1921-01-13" court="Ga." case_name="McFarland v. McFarland">105 S. E. 596).
5. Although the defendants had the burden of establishing the want of jurisdiction as alleged in their pleas (Pyron v. Ruohs, 120 Ga. 1060, 48 S.E. 434" date_filed="1904-08-12" court="Ga." case_name="Pyron & Son v. Ruohs">48 S. E. 434), they successfully carried this burden by showing without dispute that neither of them resided in Eulton County where the suit was filed. In these circumstances the court erred in refusing to vacate the restraining orders and in granting an interlocutory injunction. Peacock v. Collins, 110 Ga. 281 (34 S.E. 611" date_filed="1899-12-01" court="Ga." case_name="Peacock v. Collins">34 S. E. 611); Knight v. Bond, 112 Ga. 828 (38 S.E. 206" date_filed="1901-02-28" court="Ga." case_name="Knight v. Bond & Brother">38 S.E. 206).
6. The fact that the plaintiff’s need for injunction was urgent and' pressing, and that the grant of it would not have done appreciable hurt to the defendants, is no valid reason for an affirmance, as suggested by counsel for the plaintiff, where the court did not have jurisdiction.
Judgment reversed.