Opinion
17371.
FEBRUARY 13, 1951.
Equitable petition. Before Judge Gower. Sumter Superior Court. November 24, 1950.
Dykes, Dykes Marshall, for plaintiff in error.
Fort Fort and Charles Burgamy, contra.
1. Where a non-resident plaintiff brings an action ex contractu in a court of law, which has no authority to entertain an equitable defense, or make another a party to the suit, or to allow a setoff arising ex delicto, a court of equity, in the county where the suit is pending, may, on petition of the defendant in the pending suit, enjoin the action at law in order to allow such defendant to set up and have adjudicated in the equity case, as to the non-resident plaintiff, all matters incidental to such litigation.
2. Where a suit was filed by a non-resident corporation against a defendant in a city court of his residence, upon a cause of action ex contractu, and such defendant filed an equitable petition in the superior court of the same county against the plaintiff in the pending suit, alleging a cause of action ex delicto and the necessity of making another corporation a party to the case, and praying that the suit in the city court be enjoined and he be granted legal and equitable relief, and where the petition was served on the attorneys of record of the plaintiff in the pending suit, the trial court did not err in overruling the general demurrer of the plaintiff in the pending suit.
No. 17371. FEBRUARY 13, 1951.
J. Paul Davis filed an equitable petition in Sumter Superior Court against Commercial Credit Corporation and Calvert Fire Insurance Company. The petition alleged: Both defendants are non-resident corporations of Georgia, and licensed to do business in Georgia, and Commercial Credit Corporation has an agent in Sumter County. In 1949 the plaintiff purchased an automobile and executed a purchase-money note and conditional-sale agreement, whereby title remained in the seller until the purchase-money was paid. The seller transferred the note and title retention contract to Commercial Credit Corporation, and that company procured a policy of insurance covering the automobile from Calvert Fire Insurance Company, and the plaintiff paid the premium on the policy, which was in possession of the Credit Corporation. The automobile was completely wrecked without the plaintiff's fault, and without the consent of the plaintiff said automobile was wilfully seized by the Credit Corporation, which notified the plaintiff that it had elected to proceed to collect the purchase-price from Calvert Fire Insurance Company; and the plaintiff was informed by the Credit Corporation that, if he would send it $130.08 as payment on the note, an adjustment would be made and the car fixed and returned to the plaintiff, which sum the plaintiff sent to the Credit Corporation. Calvert Fire Insurance Company is owned and controlled by the Credit Corporation, and the defendants have conspired to defraud the plaintiff by the Credit Corporation refusing to turn the policy over to him so that he could file proof of loss; and said corporation should have collected the actual value of the automobile from the Insurance Company; and if it had exercised good faith and collected the insurance, the plaintiff's purchase-money note would have been satisfied. The Credit Corporation has filed a suit in the City Court of Americus for $1691.14, representing the balance claimed to be due on the purchase-money note. The plaintiff does not owe the Credit Corporation any amount, but on the contrary said corporation has damaged him in the sum of $3220 by reason of its wilful conversion of the automobile. The defendant Insurance Company is doing business through an agent in Columbus, Muscogee County, Georgia, and under the law it is impossible to have it made a party to the city-court suit or to have it vouched into said case, and the plaintiff has no adequate remedy at law, and will suffer irreparable damage unless a court of equity intervenes and enjoins the Credit Corporation from further proceeding with its suit in the city court. It was prayed that: (a) the Credit Corporation be enjoined from further prosecuting the city-court case; (b) service be perfected on the Credit Corporation by serving its attorneys of record; (c) the plaintiff recover $2835 of the Insurance Company; (d) the plaintiff recover $3220 of the Credit Corporation as damages; (e) the plaintiff recover punitive damages of $500; (f) he have such other equitable relief as the court should deem meet and proper.
The Commercial Credit Corporation demurred to the petition on the sole ground that the plaintiff did not allege a cause of action against it. This demurrer was overruled, and the Credit Corporation assigned error on that judgment in the present bill of exceptions.
The sole contention urged by the plaintiff in error is that the facts alleged in the petition show that both defendants are non-residents of Sumter County, and, under the Constitution and laws of this State, the trial court was without jurisdiction to entertain the petition and grant affirmative equitable relief. It is contended that the allegations of the petition do not bring the case within the exception provided in Code, § 3-202, under which a petition for injunction to stay pending proceedings may be filed in the county where the proceedings are pending, though such county be not the residence of the defendant against whom relief is prayed, "provided no relief is sought as to matters not included in such litigation." It is insisted that the relief prayed by Davis in his equitable petition is as to matters not included in the city-court suit, and that the court should have sustained the general demurrer because it appears that all of the defendants are non-residents of Sumter County.
1. Where a plaintiff institutes a suit in a county other than that of his residence, he submits himself to the jurisdiction of the courts of the county where the suit is pending. Where such suit is pending in a court of limited jurisdiction, and for want of jurisdiction cannot afford to the defendant in the pending suit full relief, a court of equity in the county where the suit is pending may enjoin the suit at law and allow the defendant in such pending suit to set up and have adjudicated, as to the non-resident plaintiff, all matters included in such litigation. Home Mixture Guano Co. v. Woolfolk, 148 Ga. 567 (1) ( 97 S.E. 637). Where a plaintiff, a non-resident of this State, sues a resident defendant in a court of law which has no power to make new parties to the action, a court of equity, on a proper case made, will enjoin the proceedings at law so that full relief may be afforded the defendant in the action at law. Radcliffe v. Ellington, 56 Ga. 222.
The right of a defendant, sued in a court of law upon a cause of action ex contractu, to set off against the plaintiff's demand damages arising ex delicto, on the ground that the plaintiff is insolvent or a non-resident, is a purely equitable right, in the enforcement of which is involved the granting of affirmative relief, and cannot be recognized in a court in which the authority to entertain equitable defenses does not extend to any case where the defense is of a nature which not only requires recognition of an equitable right, but, in order to enforce the same, the granting of affirmative relief; and this is so though the defense be based upon a right purely legal. Hecht v. Snook Austin Furniture Co., 114 Ga. 921 (1) ( 41 S.E. 74). As a general rule, the courts of this State have no extraterritorial jurisdiction, and cannot make citizens of a different State amenable to their processes or conclude them by a judgment in personam without their consent. However, where a non-resident of this State institutes a suit in this State, he submits himself for all purposes of that suit to the jurisdiction of the courts of the county in which the suit is pending. Gordy v. Levison Co., 157 Ga. 670 ( 122 S.E. 234).
2. The instant case, on its facts and equitable principles of law, is practically the same as that of Harrison v. Lovett, 198 Ga. 466 (1) ( 31 S.E.2d 799). There one Harrison, a resident of Florida, through a resident attorney, sued Lovett, a resident of Decatur County, in the City Court of Bainbridge, to recover a money judgment on a reservation-of-title contract representing the balance due on the purchase-price of an automobile. While the action was pending, and after his bank account had been garnished, Lovett filed an equitable petition in Decatur Superior Court, alleging that before any payment was due on the title-reservation contract, Harrison illegally and forcibly repossessed the automobile, and Lovett had been damaged in the sum of $1147.54 by reason of Harrison's illegal taking of his automobile; and that he had also been damaged in named sums by reason of the foreclosure suit and the garnishment proceeding. Lovett alleged that he was not indebted to Harrison; and that, since the City Court of Bainbridge had no equitable jurisdiction, he could not prosecute his claim for damages in the city-court action, and was entitled to equitable relief. In sustaining the order of the trial court overruling Harrison's plea to the jurisdiction and his demurrer to the equitable petition, this court held: "Where a suit was filed by a resident of Florida against a citizen of this State in a city court of the county of his residence, and the party sued filed an equitable petition in the superior court of the same county, alleging equitable defenses and praying that the suit in the city court be enjoined and that he be granted equitable remedies, and where a rule nisi was issued by the superior court and served on the attorney of record for the plaintiff in the city-court suit, the superior court did not err in overruling a special plea to the jurisdiction based on the ground that service on the attorney was not service on his non-resident client."
An examination of the facts alleged in the instant petition, which are set out in the statement, discloses that the rulings in Harrison v. Lovett, supra, control the case at bar. We have examined the cases relied on by the plaintiff in error — Keith v. Hughey, 138 Ga. 769 ( 76 S.E. 91), Askew v. Bassett Furniture Co., 172 Ga. 700 ( 158 S.E. 577), Cone v. Davis, 179 Ga. 749 ( 177 S.E. 558), and Kinney v. Crow, 186 Ga. 851 ( 199 S.E. 198) — and on their facts they are distinguishable from the instant case. The same may also be said of Lloyd v. Milner Motor Co., 184 Ga. 181 ( 190 S.E. 641).
The trial judge, as against the ground urged, did not err in overruling the general demurrer of Commercial Credit Corporation to the petition.
Judgment affirmed. All the Justices concur.