Sellers v. Page

Atkinson, J. The 1st, 3d, 4th, 5th, 6th, and 7th headnotes, when considered in connection with the statement of facts, do not .need any elaboration. In the following opinion we will, therefore, ■deal only with the ruling expressed in the 2d headnote. The question of service is not involved in this case. All of the defendants ■demurred and pleaded to the merits, without any objection whatever to the service. That this amounts to a waiver of service is not an open question. Paulk v. Tanner, 106 Ga. 219. The defendants therefore were all properly before the court. Was there jurisdiction to grant the injunction as prayed? The thing sought to be enjoined was the wrongful exercise of the power of sale, [637] which, itself was alleged to be void. Under the terms of the power it could not be exercised except in this State, in the county where' the suit was brought, in the county where the three defendants, resided who were attempting to exercise the power. The fourth and only remaining defendant was Sellers, to whom the power had been executed, — the holder of the note and mortgage, who was-himself a non-resident of the State. Sellers employed the three-first mentioned, residing within the jurisdiction of the court, to exercise the power at the particular place above indicated, for him and in his name. They proceeded to do this in a manner not authorized in the power, and the suit was brought to enjoin the exercise of the power altogether, on the ground that it was void, and the special sale in particular, upon the ground that the proposed sale was in violation of the terms of the power. The contention,, therefore, was that all of the defendants were attempting to deprive-the 'plaintiff of her property without her' consent and without, authority of law. While the three resident defendants who were-attempting to exercise the power may have been the attorneys at. law of Sellers, the action upon their part of which complaint is-made does not fall strictly within the line of duty existing between an attorney at law and his client, but was a mere act of agency which any one could perform. In such case if one, upon the employment of another, commit a positive wrong against a third person, as to such third person the law of principal and agent does not apply, but both are liable to him as principals. If all of the conditions existed as hereinbefore recited, they were such as to constitute all of the defendants joint wrong-doers, engaged in an enterprise to commit the injury of which the plaintiff complained. There was sufficient evidence to authorize the chancellor in so finding. Under such conditions the character of the relief prayed against all' was equitable and substantial. Inasmuch as three of the defendants resided in the county where the venue was laid, the court, for the purpose of the injunction in this ease, was vested with jurisdiction as to all. If the power was void, it could hardly be-said that Sellers, in whom the power was vested and who was the holder, could send it into this State for execution and be exempt from process of the courts where it is possible to bring him lawfully before the court, which could be accomplished either by service or, as in this case, by waiver of service. In respect to Sellers, the non [638] resident defendant, the ease is not different from what it would haye been had he in the first instance filed suit for the collection of his debt and the grantee had, by way of defense, set up the matters now insisted upon, and prayed for the injunction. Although a non-resident, the judgment would be binding upon him because of his voluntary submission to the jurisdiction. So in this case, where, under the plaintiff’s contention, he associates with him others residing within the jurisdiction, for the purpose of executing a void power of sale, thereby committing a positive wrong against the plaintiff, and when complaint is made in court he so answers as to waive service, there is in effect a voluntary coming into court, and its remedies will be applied. The ruling here made is supported by the reasoning of the decisions of this court in Harris v. Palmore, 74 Ga. 293, Adams v. Lamar, 8 Ga. 83, Mayo v. Renfroe, 66 Ga. 408, and Epps v. Buckmaster, 104 Ga. 698, and is not in conflict with the ruling made in Saffold v. Scottish Mortgage Co., 98 Ga. 785. In that case neither of the defendants resided in the county where the suit was brought. Nor is the ruling here made in conflict with that made in Reynolds & Hamby Co. v. Martin, 116 Ga. 496. In that case it was ruled that the sheriff who was attempting to sell the land was a mere nominal party and that no substantial relief was prayed against him. An examination of the facts in that case discloses that the sheriff was proceeding under an execution based upon a judgment of the court, and that the suit was instituted to set aside the judgment' upon grounds which did not concern the sheriff. The ruling there made was based upon the rulings made in Rounsaville v. McGinnis, 93 Ga. 579, and Dade Coal Co. v. Anderson, 103 Ga. 810. In both of those cases the sheriff was made a party in order to prevent him from selling property under execution. The ruling in Dade Coal Co. v. Anderson was based upon Rounsaville v. McGinnis. In that case, Justice Simmons rendering the opinion, the court determined that the sheriff was a mere nominal party, and based its conclusion upon the fact that he was proceeding under an execution, and that the execution was authority to the sheriff for his action which was complained of, and. therefore that he was not a joint trespasser with the plaintiffs in execution. Upon this point the court used the following language: “It appears from the Tecord that the judgment against McGinnis upon the replevy bond [639] was rendered by a court having jurisdiction of the case, and was valid upon its face. Code §3419. This being so, the execution issuing from that judgment would protect the sheriff in levying upon the property of McGinnis, one of the defendants in execution, whether the bond in question was genuine or not. It follows that the sheriff was not, by reason of making the levy complained of, a trespasser, either separately or jointly with the plaintiffs in execution. The sheriff not being a trespasser and the plaintiffs in execution not being residents of the county in which the sheriff resided, a suit for trespass against them in that county was not maintainable in so far' as the question of jurisdiction depended upon their being suable as joint trespassers.” In the ease now under consideration there was no judgment whatever, no execution whatever. It was merely a case of a private individual attempting to execute a power created by contract without the rights of the parties thereunder having been judicially ascertained by any court of competent jurisdiction. The charge made by the plaintiff is that the power was void and could not protect any one, and not only was void, but that the defendants were proceeding under it in a manner not authorized by the terms of the power, the effect of which would be to deprive her of her property without her consent. This ease is not controlled by the ruling in Meeks v. Roan, 117 Ga. 865. There the holder of the power was a resident of this State, and not a non-resident, as in the case under consideration. Nor did the reasoning of Justice Cobb deal with the case on the theory of a positive wrong being about to be committed by the agent at the instigation of the owner of the instrument containing the power of sale. Our constitution and laws do not contemplate that a citizen shall be forced into a foreign jurisdiction in a case like this. To hold otherwise would be to permit a non-resident holder of the broad power of sale to send it into this State and enforce the same through his agents, and however great and irreparable the damage to the suffering party might be, the courts of equity of this State would be powerless to prevent it by injunction, simply because they could not acquire jurisdiction of the offender who remained without the limits of the State. Judgment affirmed. A.ll the Justices concur, except Fish, G. J., absent.