Smith & Co. v. Woolard

Gilbert, J. (After stating the foregoing facts.) The petition is afflicted with several infirmities. But ‘it is only necessary to deal with one, since this requires a reversal of the judgment rendered below. One ground of the -demurrer attacked the vitals of the proceeding, by denying jurisdiction of the court as to Howard M. Smith & Company. It must be observed that Mrs. Corcoran and Bryan were non-residents; that there is no prayer for relief [60] ggainst Henry D. Woolard; that the only relief that can be construed as prayed against Grubbs is that the advertisement in the paper be restrained; and that Howard M. Smith & Company are not residents of Worth county, but are residents of the county of Bibb. Our constitution declares that “Equity cases shall be tried in the county where a defendant resides against whom substantial relief is prayed.” Civil Code (1910), § 6540. A prayer that an advertisement in a newspaper of the sale of property be restrained, where the publisher has no interest in the sale, is not a prayer for substantial relief as. to him. Under the guise of an equitable suit one can not draw defendants against whom substantial relief is prayed out of their county, by connecting with them on vague allegations others against whom no specific relief could be had from the facts alleged. Mackall v. West, 67 Ga. 282. Allegations against such publisher, to the effect that such advertisements of the sale of property are tortious against a claimant in possession, or libelous of the title of such claimant, are without merit and can add no strength to the allegations of the petition as to the defendant Grubbs. It is true that Bryan acknowledged service, thus waiving want of jurisdiction as to himself. But third persons are not affected by such waiver. Civil Code (1910), § 5663; Central Bank of Georgia v. Gibson, 11 Ga. 453 (4). It appearing from the.petition that no substantial relief is prayed against any party litigant who is a resident of Worth county, where the suit was brought, the superior court of that county is without jurisdiction; and it was error for the trial judge to overrule a demurrer which brought in question and denied the jurisdiction of the court. Toland v. Camp, 138 Ga. 334 (75 S. E. 138). The sole issue being as to the ruling on the demurrer, the court will look only to the pleadings, without considering any other matters or anything appearing aliunde. Seibels v. Hodges, 65 Ga. 245 (3), 247. Judgment reversed. All the Justices concur.