Nylen v. Barbaris

Gunter, Justice. This is an appeal from a judgment declining to dismiss an equitable action brought below against the appellant who was not a resident of the county in which the action was brought. The trial judge granted a certificate for review. The appellee brought an action against the appellant in the trial court to enjoin the foreclosure pursuant to a power of sale contained in a deed to secure debt. The real estate described in the security deed being foreclosed was located in DeKalb County, but it was stipulated that the defendant-appellant, the foreclosing party, was a resident of Fulton County. The Georgia Constitution (Code Ann. § 2-4903) provides that "equity cases shall be tried in the county where a defendant resides against whom substantial relief is prayed.” An action to enjoin a foreclosure under a power of sale must be brought in the county where the defendant resides. See Modern Homes Const. Co. v. Burke, 219 Ga. 710 (135 SE2d 383), and Modern Homes Const. Co. v. Mack, 219 Ga. 715 (135 SE2d 386). Submitted January 25, 1974 Decided April 16, 1974. Lewis, Lewis, Spearman & Bynum, Joe H. Bynum, Jr., Stanley H. Nylen, for appellant. George P. Montis, for appellee. The trial court’s refusal to dismiss the action was erroneous. Judgment reversed. All the Justices concur.