1. Exception to the court's jurisdiction of the person of one defendant is a right personal to that defendant, and can not be taken by his codefendant.
2. While a suit in equity, based upon separate and distinct claims against *Page 19 different persons, where there is no common right to be established, will be dismissed on demurrer on the ground of multifariousness, yet where each party has an interest in some matter in the suit which is common to all, and they are connected with each other, the petition is not subject to demurrer on the ground of multifariousness, although all the parties do not have an interest in all the matters contained in the suit.
3. The petition seeking cancellation of a deed to the highway board, and damages from the county for constructing a road upon the right of way, as well as consequential damages resulting from the manner in which the highway was constructed, stated a cause of action against the county; and it was error to sustain the county's general demurrer.
No. 14299. NOVEMBER 13, 1942. D. B. Williams, by his next friend Lula Thurmond Williams, sued the State Highway Board of Georgia and Madison County jointly in the superior court of Madison County. The petition as amended alleges, that on April 20, 1932, D. B. Williams was adjudged to be a lunatic, as shown by the record of the office of ordinary of Madison County; that no guardian was ever appointed for D. B. Williams; that he has never been restored mentally, and has never been discharged from the Milledgeville Hospital for the Insane, but has merely been permitted to return to his home on a furlough; that he is the owner of a certain described tract of land in Madison County; that on May 17, 1940, the State Highway Board, acting by and with the County of Madison, caused D. B. Williams to execute and deliver to the State Highway Board "a right of way deed" to, upon and across his described land, conveying 8.48 acres of land; that the deed, a copy of which is attached to the petition, was duly recorded; that at the time of its execution the grantor was insane and mentally incompetent to execute and deliver such deed; that both of the defendants were charged with knowledge of the mental incapacity of Williams, because of the record of the judgment of the court of ordinary to that effect; that Madison County, acting with the consent of the State Highway Board, entered upon the right of way described in the deed, and without paying just and adequate compensation therefor, and over protest, constructed and is now constructing thereon a public highway locally known as the Commerce-Ila-Danielsville public road; that neither the State Highway Board nor the county has paid or offered to pay just and adequate compensation for the land so appropriated; *Page 20 that the fair market value of the land so taken is $1500 or other large sum; that the highway is so constructed as to divert surface-water from its natural flow, and to divert water from the pasture and from the residence and barn of the plaintiff, and no provision has been made for an underpass or overpass for the cattle of the plaintiff to reach water, all to the plaintiff's damage of $1500 or other large sum; that the procurement of the deed and the construction of the highway were acts of the County of Madison and the State Highway Board in co-operation one with the other; that the defendants are jointly interested, in that the county is primarily liable and the State Highway Board is ultimately liable for all damages that may be awarded; that to avoid a multiplicity of suits the petitioner brings this action and prays (1) that the State Highway Board of Georgia be required to surrender and cancel from the records of Madison County the void deed described in the petition; (2) that the plaintiff recover from Madison County just and adequate compensation for the right of way appropriated for public use; and (3) that he recover from Madison County consequential damages of $1500; and that he have such other relief as he is entitled to. The petition gave the names of the members of the State Highway Board, and alleged that one member, Vandiver, was a resident of Franklin County. It was prayed that the board be served with second original.
The county demurred to the petition as amended, on the grounds, (1, 2) that the State Highway Board, the only defendant against whom substantial equitable relief was sought, was a non-resident, and therefore that the superior court of Madison County was without jurisdiction; (3, 4) that the petition was multifarious, in that it contained a misjoinder of parties and causes of action, and (5) that no cause of action was alleged. The State Highway Board demurred on the grounds, (1) that the petition as a whole alleged no cause of action, and (2) that there was a misjoinder of parties defendant and causes of action. Judgment was entered, sustaining grounds 2, 3, 4, and 5 of the county's demurrer and ground 1 of the demurrer of the State Highway Board, and dismissing the action, the judgment reciting that "ground 1 general demurrer def't board is not passed upon." To this judgment the plaintiff excepted. 1. Ground 2 of the county's demurrer questions the court's jurisdiction of the non-resident State Highway Board. This is the only ground of demurrer ruled on that raised the jurisdictional question; and it was error to sustain the same, since the resident defendant was not authorized to raise the question. The question of jurisdiction is personal, and can not be raised by a codefendant. Rice v. Tarver, 4 Ga. 571 (4); Roberts v. Burnett, 164 Ga. 64 (5) (137 S.E. 773). Whether or not the non-resident defendant could raise this jurisdictional question by general demurrer (see Code, § 81-209;Hadden v. Fuqua, 192 Ga. 668, 675, 16 S.E.2d 737; Ray v. Hicks, 146 Ga. 685 (2), 92 S.E. 48; Ruis v.Lothridge, 149 Ga. 474 (2), 100 S.E. 635), the judgment expressly states that the general demurrer of the non-resident State Highway Board was not ruled on.
2. Both the special demurrer of the highway board and grounds 3 and 4 of the demurrer of the county assailed the petition on the ground that it is multifarious, and the court sustained these demurrers. While it is true, as stated in George W. Muller BankFixture Co. v. Southern Seating Cabinet Co., 147 Ga. 106 (92 S.E. 884), that "A suit in equity, based on separate and distinct claims against different persons, where there is no common right to be established, will be dismissed on demurrer on the ground of multifariousness," and this rule was applied inAnsley v. Davis, 140 Ga. 615 (79 S.E. 454), Gordy v.Levison, 157 Ga. 670 (122 S.E. 234), Whiddon v. SouthernAuto Finance Co., 186 Ga. 726 (198 S.E. 729), and Polk v.Slaton, 187 Ga. 620 (1 S.E.2d 402), yet this rule will not be expanded to include cases where there is a common right to be established. In the present case, as against the highway board, the relief sought is cancellation of a deed to the right of way on which the county has constructed a road. In order to entitle the plaintiff to recover from the county the value of the land appropriated for highway purposes, it is essential that the plaintiff show title in himself to this land. Consequently, when the plaintiff seeks to make this showing by cancellation of the deed conveying title out of himself into the highway board, he thereby threatens the interest of the county and renders the county a party interested in the claim against its codefendant, *Page 22 the highway board. The rule applicable to this state of facts is declared in Worthy v. Johnson, 8 Ga. 236 (52 Am. D. 399), as follows: "To sustain a bill against the charge of multifariousness, it is not indispensable that all the parties should have an interest in all the matters contained in the suit. It is sufficient, if each party has an interest in some matter in the suit, which is common to all, and they are connected with others." This rule was applied in Blaisdell v. Bohr, 68 Ga. 56 (2); Conley v. Buck, 100 Ga. 187 (28 S.E. 97); EastAtlanta Land Co. v. Mower, 138 Ga. 380 (3) (75 S.E. 418);Belcher v. O'Shields, 150 Ga. 298 (103 S.E. 492); Battle v. Royster Guano Co., 155 Ga. 322 (118 S.E. 343). As stated, "it is sufficient if each party has an interest in some matter in the suit which is common to all." Each party in the present case has an interest in the deed from the plaintiff to the highway board, which this suit seeks to cancel; and this interest is common to both. Hence the petition is not subject to the criticism that it is multifarious, and it was error to sustain the grounds of demurrer raising this question.
3. The other ground of the county's demurrer is general, asserting that the petition alleges no cause of action. In the absence of the highway board as a codefendant and the allegations and prayer for cancellation of the deed to the highway board, the petition would be subject to this attack in so far as it seeks a recovery of the value of the land appropriated to highway purposes; but, under the foregoing rulings, the highway board is a party, and these allegations are in the petition; and hence a cause of action is stated. Furthermore the petition alleges a cause of action for damages resulting from the construction of the highway. There was no merit in the general demurrer of the county, and it was error to sustain the same.
Judgment reversed. All the Justices concur.