An equitable petition by one against whom a judgment was rendered as surety on an eventual condemnation-money bond given under the Code, § 107-202, alleging that petitioner's name on said bond was a forgery, and praying that the judgment be set aside and canceled, the petition being brought against the defendant in the original suit, in the superior *Page 740 court of the county of his residence, and against the plaintiff in such original suit, who was a resident of another county, was subject to demurrer on the ground that same was not filed in a county wherein resided a defendant against whom substantial relief was prayed.
No. 14292. OCTOBER, 14, 1942. Mrs. Sallie Beacham filed in Laurens superior court her petition against C. K. Beacham, a resident of Laurens County, and against Henry Ford Cullens, alleged to be a resident of Treutlen County, the substance of which is as follows: Henry Ford Cullens owns the business and all the assets of T. W. Cullens Motor Company, including judgments, notes, and accounts of that company. On April 7, 1937, that company filed in the city court of Dublin, Laurens County, an action in trover against C. K. Beacham, seeking to recover a certain motor truck. In order to retain possession of said truck C. K. Beacham gave to the sheriff a replevy bond signed by himself as principal, with the name of petitioner thereon as security. The bond was not signed by petitioner or by any one authorized by her to sign for her, and her name was signed without her knowledge or consent. T. W. Cullens Motor Company obtained a verdict and judgment in a stated sum against C. K. Beacham as principal, and against petitioner as surety, and execution issued against them. Petitioner alleges that the replevy bond executed without her knowledge or consent, and never ratified by her, is void; and that said judgment and execution is a lien on any property she now or may hereafter own, and is a cloud upon such property as she now or hereafter may possess. She prays that the verdict, judgment, execution, and bond be declared null and void as to her, and be canceled and declared of no force and effect as to her; and for general relief.
The petition was demurred to by Henry Ford Cullens, on the following grounds:
"First. The plaintiff's petition is a suit in equity for relief in equity, but the plaintiff does not show that she does not have adequate remedy at law, and in fact the facts of the petition show that the plaintiff does have an adequate remedy at law. The plaintiff has an adequate remedy at law, since she can defend herself amply and fully by affidavit of illegality and proceedings thereunder under the laws of Georgia. *Page 741
"Second. The superior court of Laurens County, Georgia, does not have jurisdiction of this defendant, Henry Ford Cullens, in the above-stated case, because this defendant does not live in Laurens County, but lives in Treutlen County, Georgia, and lived in Treutlen County at the time of the filing of the plaintiff's petition in said case, and this defendant has so lived all his life. The plaintiff in her petition asks substantial equitable relief against this defendant, and under the laws of Georgia a suit in equity asking substantial relief against a defendant must be commenced in the county of the residence of the defendant against whom substantial relief in equity is sought. The plaintiff's petition does not show any collusion or conspiracy by and between this defendant and the defendant C. K. Beacham; and for that reason, and the further reason that the petition shows on its face that this defendant lives in Treutlen County, Georgia, and that substantial relief in equity is sought against this defendant, the petition shows that the superior court of Laurens County does not have jurisdiction of this defendant."
C. K. Beacham demurred to the petition, on the grounds, that no cause of action is alleged against him; that the only equitable relief sought is against one who is not a resident of the county where the suit was brought; and that the petition shows on its face that there has been a misjoinder of parties defendant, in that no common or joint right is alleged by the plaintiff against this defendant and Henry Ford Cullens.
The court sustained the demurrers on the ground that this equitable suit was instituted in the county of the residence of one of the defendants against whom no substantial equitable relief was prayed; and that, under the facts as pleaded, the superior court of Treutlen County, and not the superior court of Laurens County, had jurisdiction. To this ruling the plaintiff excepted. The question is not whether C. K. Beacham, the Laurens County defendant, was a proper or necessary party to the suit, but rather, did the petition seek substantial equitable relief against him? That he may properly have been made a party does not determine the other inquiry. It is a question as to proper venue, not proper parties. The requirement of the constitution of this State, art. 6, sec. 16, par. 3, is that "Equity cases shall be *Page 742 tried in the county where a defendant resides against whom substantial relief is prayed." Code, § 2-4303. A non-resident can not be made to litigate in one county issues between him and a plaintiff solely on account of the joinder of a resident defendant against whom there is a prayer for equitable relief.Fowler v. Southern Airlines Inc., 192 Ga. 845, 851 (16 S.E.2d 897). An equitable petition against two defendants residing in different counties in this State, brought in the county of the residence of one of them, where it is apparent that the only substantial relief sought is against the non-resident defendant, is subject to dismissal for want of jurisdiction.Grace v. Interstate Bond Co., 193 Ga. 810 (20 S.E.2d 131). If relief be sought against the resident defendant, which is merely collateral or incidental, this will not suffice to give the court jurisdiction. The relief prayed for against him must be substantial. For instances where the rule has been applied, see, besides those referred to in the case last cited, Ellis v.Farmer, 119 Ga. 238 (46 S.E. 105), and cit.; Martin v.Gaissert, 134 Ga. 34 (67 S.E. 536), and cit.; Willie v.Willie, 154 Ga. 688 (115 S.E. 257).
In the instant case there is no specific prayer relating to C. K. Beacham, except one for process. Such relief as is prayed against him is embraced within the prayer that the verdict, judgment, execution, and bond be declared null and void as to the petitioner, and that they be canceled. The only person who could attempt to use the fi. fa. against her is Cullens, the non-resident defendant. Beacham is doing nothing to harm her, and is not in position to do so. The judgment is against him, and against her as his surety. He could never use it against her, although she could against him. Code, §§ 24-1406, 39-607. That she seeks cancellation of a judgment against him, which is also against her as surety, does not make it a case wherein she seeks affirmative relief as to him. The superior court of his county was without jurisdiction.
Judgment affirmed. All the Justices concur, except Hewlett,J., not participating. *Page 743