Opinion
34200.
DECIDED OCTOBER 24, 1952. REHEARING DENIED NOVEMBER 3, 1952.
Declaratory judgment; from Muscogee Superior Court — Judge Fort. June 11, 1952.
Hatcher, Smith Stubbs, for plaintiff in error.
Edward Parrish, Swift, Pease, Davidson Chapman, Franklin, Eberhardt Barham, contra.
Where the interests of the plaintiff and the resident defendant are identical and the allegations of the petition fail to show any justiciable controversy between the plaintiff and the resident defendant in which the non-resident defendant has any substantial interest, on motion of the non-resident defendant, setting out that it is a resident of a named county in this State and subject to suit only in the superior court of that county, the petition will be dismissed as to such non-resident defendant for want of jurisdiction.
DECIDED OCTOBER 24, 1952 — REHEARING DENIED NOVEMBER 3, 1952.
Maryland Casualty Company sued the City of Adel and Hewitt Contracting Company in the Superior Court of Muscogee County, seeking a declaratory judgment. The petition alleged, in substance: that Hewitt Contracting Company entered into a contract with the City of Adel for the construction of a sewer system in said city, and that the plaintiff was the surety on the performance bond which Hewitt Contracting Company had furnished the city under the terms of the construction contract; that the city had notified the plaintiff that Hewitt Contracting Company was in default in the performance of the work specified in its contract with the city, and had called upon the plaintiff to take over and complete the work; that the plaintiff notified Hewitt Contracting Company of the city's demand, and Hewitt Contracting Company denied that it was in default in the performance of its contract with the city, and asserted that it had performed all work required under the terms of its contract with the city, and that any defects in the construction of the sewer system were caused by defective and inadequate plans and specifications furnished by said city, and that Hewitt Contracting Company had refused to do any further work under the contract; that the plaintiff could not determine the extent and nature of the work demanded by the city, nor the liability, if any, of Hewitt Contracting Company to said city under the performance bond, nor the resulting liability of the plaintiff as surety on said bond, nor the liability, if any, of the plaintiff to said city, nor its rights against Hewitt Contracting Company, without a declaration of rights of the plaintiff, Hewitt Contracting Company, and the city. The prayers of the petition were for process, for the court to fix a day certain for the trial of the case, for a declaratory judgment declaring and determining the rights of the plaintiff and the defendants with respect to all issues raised in the petition and pleadings of the defendants, and for such other relief to which the plaintiff might be entitled.
The City of Adel appeared specially and moved to dismiss the petition upon the following grounds: (a) Hewitt Contracting Company, named by the plaintiff as a defendant, was not in law an adverse party to the plaintiff and was not a proper party defendant, and, as the contracting company was the only defendant named in the petition who resided in Muscogee County, the superior court of that county had no jurisdiction of the defendant City of Adel, and only the Superior Court of Cook County had jurisdiction over said city; (b) the interests of the plaintiff and the defendant, Hewitt Contracting Company, were identical, and Hewitt Contracting Company was not a proper party defendant for this reason; (c) the defendant Hewitt Contracting Company, was not a bona fide defendant in said action; and (d) the only issue of the case was whether or not Hewitt Contracting Company had violated its construction contract with the city, including the performance bond, and the plaintiff and Hewitt Contracting Company stood together on one side of the issue and the defendant City of Adel on the other side, and for this reason the Superior Court of Muscogee County had no jurisdiction of the defendant city, but only the Superior Court of Cook County had jurisdiction of said city. The prayers of this motion were that the petition be dismissed as to the City of Adel and that it be dismissed at the plaintiff's costs.
By amendment, the plaintiff set out that, in its application for the performance bond, Hewitt Contracting Company had made certain covenants for the protection of the plaintiff in the event of a claim or default under said contract, and copies of said application and bond were filed with the court.
After argument of counsel thereon, the court sustained the motion of the City of Adel and dismissed the petition as to this defendant. The plaintiff excepted to this judgment.
The controlling issue before this court is whether or not the Superior Court of Muscogee County had jurisdiction of the City of Adel to determine the issues raised by the pleadings of the plaintiff. The City of Adel contends that it did not, but that only the Superior Court of Cook County, in which county said city is located, has jurisdiction to hear and determine the issues of the case. There is no special statute with respect to the jurisdiction of cases in which declaratory judgments are sought, but such proceedings shall be filed and served as in other cases in the superior courts. Code (Ann. Supp.), § 110-1104. See Code (Ann.), §§ 2-4903 and 2-4906. "Suits against joint obligors, joint promissors, copartners, or joint trespassers, residing in different counties, may be tried in either county." § 2-4904.
While "suits against joint obligors, joint promissors, copartners, or joint trespassers" may be filed and tried in the county of the residence of any joint defendant, we do not think that, under the allegations of the petition in this case, Hewitt Contracting Company and the City of Adel are shown to be within any of these classes. The contract alleged to have been breached in the present case was one between the City of Adel and Hewitt Contracting Company. There could be no independent liability on the part of the plaintiff to the city under this contract, for the plaintiff was not a party to it. Any liability of the plaintiff to the city under this contract could arise only by reason of its standing surety for Hewitt Contracting Company on the performance bond filed by the contracting company with the city. Whether or not there is a breach of this contract on the part of Hewitt Contracting Company, is a controversy between it and the City of Adel in the first instance. If there is no liability on the part of Hewitt Contracting Company to the City of Adel under the terms of its contract with the city, there is no liability on the part of the plaintiff to the city under its performance bond wherein it stood as surety for Hewitt Contracting Company. We do not think that the fact that the plaintiff, as surety, guaranteed performance of the contract by Hewitt Contracting Company, as principal, would give the superior court of the county of the residence of Hewitt Contracting Company jurisdiction on petition of the surety to hear and determine the controversy between Hewitt Contracting Company and the City of Adel as to whether or not there had been a breach of the contract on the part of the contracting company in the performance of the work to be performed by the company for the city. That the plaintiff and Hewitt Contracting Company had entered into a separate contract by the application for the performance bond would not give the plaintiff any right to compel the City of Adel to join in a suit with reference to this separate contract, since the City of Adel was not a party to the application and had no interest therein.
Under the pleadings in this case, the controversy, if any exists, is between Hewitt Contracting Company and the City of Adel, respecting the performance of the contract between them. While the plaintiff has guaranteed the performance of this contract, its interests in the controversy are not adverse to those of Hewitt Contracting Company, but are identical with them, for there can be no liability under the terms of the performance bond on the part of the surety unless there is first liability on the part of the principal to the city. Naming the Hewitt Contracting Company as a defendant does not aid the plaintiff in its action, for there is no substantial relief sought against this defendant in which the City of Adel has any material interest. The allegations of the petition fail to show any justiciable controversy between the plaintiff and Hewitt Contracting Company in which the City of Adel has any substantial interest, and the trial court did not err in holding that the Superior Court of Muscogee County, said county being the residence of Hewitt Contracting Company, was without jurisdiction of the City of Adel, located in Cook County, Georgia, and in dismissing the petition as to the City of Adel. In this connection, see Tucker v. American Surety Co. of N. Y., 206 Ga. 533 ( 57 S.E.2d 662); Sims v. Clark, 91 Ga. 302 ( 18 S.E. 158).
The cases cited and relied upon by the plaintiff in error are distinguishable on their facts from the present case and do not authorize a different ruling from the one herein made. The contention of the plaintiff in error that the Supreme Court, in Calvary Independent Baptist Church v. City of Rome, 208 Ga. 312 ( 66 S.E.2d 726), overruled Tucker v. American Surety Co., supra, cannot be sustained.
Judgment affirmed. Felton and Worrill, JJ., concur.