Millsap v. Waco Mercantile Co.

Hill, J. (After stating the foregoing facts). We think it is clear that the superior court of Haralson county has jurisdiction of this ease, and that the plaintiff can maintain her action there against the defendants, the Waco Mercantile Company and Robertson as the executor of M. A. McCorkle, both residing in that county, to require them to interplead as prayed in the petition, and to enjoin the suit brought by the Waco Mercantile Company in Colquitt county to recover on the notes the title to which is involved in the present case. The right to enjoin a suit in the county where it is brought, where nothing else is involved, is a defensive measure, which may be taken advantage of by the defendant. But that is different from a case where the defend [100] ant does not want to defend against one plaintiff alone, for fear that she may have to pay the debt twice. There are other parties involved in the present suit, and the petitioner asks that all the parties who are claimants of the notes sued on be made to come into court and interplead, so as to protect her rights. The plaintiff admits owing the money due on the notes sued on in Colquitt county, to the legal owner thereof; but there are two claimants of the notes. She is sued by one, and put on notice by the other that he claims the money as executor, and that if she pays the notes to the other party she will do so at her peril. Each of the claimants of the notes resides in Haralson county. The plaintiff in the present suit, who resides in Colquitt county, can not require all the parties to interplead in that county, because neither of them resides there, and only one of them is there as plaintiff in the suit on the notes, and the other can not be drawn into that jurisdiction and required there to interplead. All equitable eases shall be tried m the county of the residence of a defendant against whom substantial relief is prayed. Civil Code, § 6540. Robertson and the Waco Mercantile Company are both residents of Haralson county; and there being a good cause of action for interpleader set out in this case against both defendants, that county has jurisdiction of the suit, and the court erred in denying the injunction prayed for to enjoin the suit in Colquitt county. The evidence in this ease makes it doubtful or dangerous for •Mrs. Millsap to pay to the Waco Mercantile Company, the holder of the notes, the amount due thereon, or to suffer judgment to be taken against her in Colquitt county in its favor. The evidence shows that she has been put on notice by Robertson, as executor of M. A. McCorkle, that he claims title to the notes sued on in Colquitt superior court, and that if she pays the notes to the Waco Mercantile Company she will do so at her peril; and in the affidavit filed by him in the cause he testified that under the will of which he was the executor Mrs. McCorkle only acquired a life-estate in the notes in controversy. The allegations of the plaintiff’s petition and the evidence in support of them make a good cause for interpleader between the two rival claimants of the notes; and this being so, the court erred in denying the injunction. - Civil Code, § 5471. See McKinney v. Daniels, 135 Ga. 157 (68 S. E. 1095). The exception contained in the Civil Code, § 5527, to the effect that [101] injunction suits to stay pending proceedings may be filed in the county where the proceedings are pending, provided no relief is prayed as to matters not included in such litigation, does not affect the venue of the present suit, in which independent relief is sought against one who is a non-resident of Colquitt county, and who is not a party to the suit there pending. Judgment reversed. All the Justices concur.