Lawson v. Cunningham

'Lumpkin, C. J. I shall address myself exclusively to the question of jurisdiction as it disposes of the case, at least for the present, and, as it will be seen in the course of this opinion, not for the purpose of avoiding labor in examining the i/weniy-fowr grounds taken on the motion for a new trial, hut for defending and protecting an important right guaranteed by the constitution of the State to the plaintiff in error, and that is the right which every man has of being sued in the county of his residence, unless in certain excepted cases, in which this is not included. It is admitted, and the fact is abundantly established by the proof, that Robert Cunningham left no estate to he administered; that Tillinghast is a mere nominal party, and became the administrator for no other purpose hut to enable the complainant to institute suit jin Bibb county; and that this proceeding was adopted under the direction and by the professional advice of the late Thomas Stubbs, Esq., then of [530] counsel for the complainant in the bill: and the broad question submitted now, for our adjudication is, can the defendant John A. Lawson be deprived of his constitutional privilege of being sued only in Burke county, by combining him with a nominal party constituted for this purpose alone ? Will the law sanction such a perversion ? We unhesitatingly answer in the negative. To sanction such a proceeding would be a fraud upon the constitution. The framers of the fundamental law supposed, and we think very wisely, that the right thus secured 'to defendant was worth something. It involves, amongst other things, the convenience of attending court, of procuring the attendance of witnesses, and collecting testimony, of obtaining securities if they should be required in case of appeal and other emergencies, and the still more important object of them all, to have the rights of parties passed upon by one’s neighbors, instead of strangers. And yet all these and many other advantages which might be mentioned are ignored by a combination, thus got up, to evade the plain provision of the constitution. And this done, too, to transfer to the complainant the benefit that would have resulted to the defendant by filing the bill in the proper forum. Why transfer to Cunningham the privileges vouchsafed to Lawson, by removing the litigation from- Burke to Bibb. True, there are cases where, from necessity, you may elect between one of several counties. ETo such necessity exists in the present case. And what possible effect can the collusion between Martin and Cunningham, upon which so much stress has been laid, have to do with the question \ In fact, the Court below put the question of jurisdiction to the jury, as bearing upon the issue of fraud or no fraud between Cunningham and Martin, and the finding of the jury upon this point decided the question as to the jurisdiction. When, in truth and in fact, it had no conceivable connection with it; and for this reason, if no other, a new trial should have been granted. If these parties have rights, and we could assign many [531] and cogent reasons for doubting it, a few of which were intimated when this case was before ifs on demurrer, 21st Ga. Rep., page 454, let them assert them in the usual way pointed out by the constitution and laws, and they will be heard. Judgment reversed.