Opinion
13331.
JUNE 14, 1940.
Complaint. Before Judge Kent. Twiggs superior court. March 28, 1940.
Martin, Martin Snow, for plaintiff in error.
H. F. Griffin and R. Earl Camp, contra.
When to a suit at law, by the transferee against the maker of a promissory note, an answer in the nature of a cross-action was filed, praying equitable relief against the original payee, who resided in a county other than the one wherein the suit was pending, it was error to sustain a motion making such transferor a party, over his objection that the court had no jurisdiction so to do, or to grant the relief sought.
No. 13331. JUNE 14, 1940.
L. V. Norris bought from the Huckabee Auto Company an automobile, giving his old automobile in part payment and executing a note for $495.36, payable monthly, for the balance. The Huckabee Auto Company transferred the note to the General Motors Acceptance Corporation. Norris refused to pay the note, and the General Motors Acceptance Corporation sued out a purchase-money attachment returnable to the superior court of Twiggs County. In answer to the declaration in attachment Norris set up that Huckabee Auto Company had misrepresented to him the automobile which it had sold to him; claiming that it was a most extravagant consumer of gas, contrary to representations, that the brakes would not work, that it was virtually worn out, and, in short, was an "omnium gatherum of automobile junk;" that immediately after he took the automobile home he saw it was not as represented, and took it back to Huckabee and offered to rescind the trade upon the company restoring to him his old automobile; that Huckabee refused to do this, but transferred his contract to General Motors Acceptance Corporation so that it could occupy the plausible position of being a transferee in due course for value, so as to prevent him from setting up his defense against the Huckabee Auto Company. He pleaded that he might not be able to make good his defense as against the General Motors Acceptance Corporation, by reason of it being a bona fide holder for value before maturity, and therefore that Huckabee Auto Company was liable over to him for whatever judgment the General Motors Acceptance Corporation might obtain against him. He alleged that the Huckabee Auto Company was a resident of Bibb County, Georgia and prayed that it be made a party defendant and that he have judgment against it in an amount equal to the amount which General Motors Acceptance Corporation obtained against him, and in addition the sum of $450, the value of his old automobile. In response to a rule nisi to show cause why it should not be made a party defendant, the Huckabee Auto Company appeared and moved that the application of Norris to make it a party in the case be dismissed for the reason that it affirmatively appeared from his allegations that the Huckabee Auto Company was a resident of Bibb County, and not subject to the jurisdiction of the superior court of Twiggs County. The judge overruled this motion, and made the Huckabee Auto Company a party defendant. It excepted to that ruling.
The sole question to be determined is whether the maker of a promissory note, when sued at law by a transferee, may file an answer in the nature of a cross-action and maintain against the original payee an equitable action, notwithstanding the payee resides in a county other than the one wherein the suit is pending. Under the procedure which obtains in this State, it is permissible for a defendant sued at law to file such pleadings as will convert the case into one in equity; and new parties may be made in equity cases. But neither of these two propositions, nor both of them combined, will authorize an action in a forum forbidden by our constitution. Article 6, section 16, of that instrument deals with venue. Paragraph 3 (Code § 2-4303) declares that "Equity cases shall be tried in the county where a defendant resides against whom substantial relief is prayed." This means substantial equitable relief. Wright v. Trammell, 176 Ga. 84 ( 166 S.E. 866), and cit. There being in Twiggs County no defendant against whom such relief is prayed, it was erroneous to make, on motion, a resident of another county a party defendant, even though in the cross-action substantial equitable relief was sought as to him. Compare Toland v. Camp, 138 Ga. 334 ( 75 S.E. 138); Smith v. Woolard, 147 Ga. 58 ( 92 S.E. 867); Wright v. Trammell, supra; Bradley v. Burns, 188 Ga. 434 ( 4 S.E.2d 147). While Barnes v. Banks, 154 Ga. 706 ( 115 S.E. 71), was a case at law, and therefore distinguishable, its reasoning is in point here, because, under facts similar to those before us, a maker of a note, sued with the indorsers who resided in a different county, filed against the latter a "cross-petition." This cross-petition was dismissed on motion of the indorsers. This court ruled "that the court did not err in dismissing the `cross-petition.' Under the constitution an action must be brought in the county of the defendant's residence, and neither of the indorsers, who were the defendants in the `cross-petition,' resided in Jones County. While they could be sued there with the makers of the notes, because they were joint obligors, the makers could not maintain in that county the `cross-petition' against them." The decision in McMillan v. Spencer, 162 Ga. 659 ( 134 S.E. 921), relied on by counsel for defendant in error, dealt with the proposition that the defendant had a right to set up the matters urged in his plea, and to have the transferor made a party; but no question of venue was involved. In that case J. W. McMillan, who occupied a position similar to that of Huckabee Auto Company here, did not urge, as a reason why the motion to make him a party should not be granted, that the superior court of the county where the suit was pending had no jurisdiction of him, because of non-residence. It did not appear in that case, as it does here, that the new party did not reside in the county of the forum. The record in the McMillan case has been examined, and it is nowhere shown therein that he was not a resident of Habersham County. The question that controls the instant case was not there involved.
Judgment reversed. All the Justices concur.