Opinion
22286.
ARGUED JANUARY 13, 1964.
DECIDED FEBRUARY 10, 1964. REHEARING DENIED MARCH 5, 1964.
Equitable petition. Jenkins Superior Court. Before Judge Usher.
W. C. Hawkins, O. W. Franklin, Jr., Franklin, Barham, Coleman, Elliott Blackburn, for plaintiff in error.
Thomas M. Odum, V. J. Adams, Tully M. Bond, Jr., Wm. K. Buffington, contra.
Legislation is within the province of the legislature; construction of statutes is the province of the courts.
ARGUED JANUARY 13, 1964 — DECIDED FEBRUARY 10, 1964 — REHEARING DENIED MARCH 5, 1964.
Wade Burke filed his equitable petition in the Jenkins Superior Court against Modern Homes Construction Company, in which he sought to enjoin the sale of certain described property that was being advertised for sale under the powers contained in a certain deed to secure debt held by the defendant. The plaintiff sought a temporary injunction and a permanent injunction against the sale, punitive damages and attorney's fees and prayed that the described deed to secure debt be canceled.
The defendant corporation not having an agent, office or place of doing business in Jenkins County, service was perfected upon the defendant at its office and place of business in Valdosta, Lowndes County, Georgia.
The petition alleged in substance that the plaintiff owned a described lot in Millen, Jenkins County, Georgia, in fee simple; that the defendant corporation induced him to enter into an agreement by the terms of which the defendant constructed a dwelling house on the lot for him in consideration of his executing to it a note for $4,244.40, the purchase price of the house, payable in installments of $58.95 per month, and a deed to secure the loan; that a part of the agreement between the parties was that the defendant would obtain at the plaintiff's expense what is known as credit life insurance upon the plaintiff's life conditioned that in the event of his death or total and permanent disability the insurance company would pay "all amounts due on the loan"; that the agent represented both the insurance company and the defendant corporation, a fact of which the plaintiff was not aware; that in connection with the application for the insurance policy the plaintiff informed the agent that he could not read or write and did not know his own age, but that according to reports he was "somewhere around the age of 54 or 55," whereupon the agent proposed, and he agreed, to "put his age down at 55"; that the agent promised to send the policy to him but never complied with the promise; that the American Casualty Insurance Company issued the policy, but he did not know and the agent did not advise him of two clauses contained in the policy — one limiting the age of the insured to 55 years and the other providing the insurance would only remain in force until the insured attained the age of 60 years, so that in the event the insured was over 55 years old when the policy was written, or after he reached the age of 60 years he would not be within its coverage; that after the policy was issued the plaintiff became totally and permanently disabled; that the American Casualty Insurance Company on numerous occasions made payments to the Modern Homes Construction Company on the loan secured by the deed.
It was further alleged that: "on an unknown date the defendant and plaintiff were informed by American Casualty Insurance Company that they would not pay any further installments due on said note and demanded a refund of all moneys paid under the policy because the plaintiff was alleged to be born in 1900. The truth of this is unknown to plaintiff. The defendant corporation has committed a fraud upon your petitioner, by misleading the plaintiff as to coverage under the insurance policy and failing to advise the plaintiff the exact terms of said contract of the insurance, when in the fact [sic] said information was within the knowledge of said company, that the plaintiff did not know his correct age, and acting upon said advise [sic] erroneously given, recklessly given, and in complete disregard of the contractual rights of the party, induced your plaintiff into executing a deed to secure debt over said property which was free and unencumbered at said time. That said act was done with intent to defraud and did defraud your petitioner due to the fact that they well knew that it was a possibility that he might be over fifty five years of age and said acts constitute fraud and did defraud your petitioner out of the fee simple title to property which he owned."
The defendant corporation did not file an answer, but filed a motion to dismiss and strike the plaintiff's petition and thereafter filed an amendment to the motion to dismiss and strike. The court thereafter overruled the defendant's motion to dismiss, as amended, on each and every ground thereof.
The questions of law raised by the motion to dismiss as amended involve the jurisdiction of the Jenkins Superior Court to entertain a suit in equity against a nonresident defendant, having no agent in that county upon whom suit could be served, and against whom cancellation of the deed, permanent injunction, damages and attorney's fees were sought. It is contended that the petition showed on its face that the Superior Court of Lowndes County had jurisdiction of this cause of action and the same could not be brought in Jenkins County.
The plaintiff contends that Ga. L. 1962, p. 659 ( Code Ann. § 3-202), which reads: "All petitions for equitable relief shall be filed in the county of the residence of one of the defendants against whom substantial relief is prayed, except in cases of injunctions to stay pending proceedings, when the petition may be filed in the county where the proceedings shall be pending, provided no relief is prayed as to matters not included in such litigation. For the purposes of this section, foreclosures and sales under power shall be considered pending litigation" authorized the bringing of this suit in Jenkins County despite the fact that the defendant corporation had no office, agent or place of doing business in Jenkins County.
The defendant contends that the petition for affirmative equitable relief, including damages, cancellation of a deed and attorney's fees, took the case out of the narrow class of cases authorized by Code Ann. § 3-202, supra, and that the last sentence of the section is unconstitutional as being in conflict with Art. VI, Sec. XIV, Par. III of the Constitution of Georgia providing: "Equity cases shall be tried in the county where a defendant resides against whom substantial relief is prayed."
From the overruling of the motion to dismiss as amended, the defendant excepts and brings its writ of error to this court.
Correctly stated in the brief for the plaintiff in error is the question that this court is called upon to decide: "Is the Act of 1962 (Ga. L. 1962, p. 659; Code Ann. § 3-202) in conflict with the provision of the Georgia Constitution (Article VI, Section XIV, Paragraph III; Ga. Code Ann. § 2-4903) reading: `Equity cases shall be tried in the county where a defendant resides against whom substantial relief is prayed'?"
Code § 3-202, before being amended by the Act of 1962, read: "All petitions for equitable relief shall be filed in the county of the residence of one of the defendants against whom substantial relief is prayed, except in cases of injunctions to stay pending proceedings, when the petition may be filed in the county where the proceedings shall be pending, provided no relief is prayed as to matters not included in such litigation." This court in several instances held that the exercise of a power of sale contained in a security deed was not litigation within the meaning of the statute. Meeks v. Roan, 117 Ga. 865 ( 45 S.E. 252); Railroad Commission v. Palmer, 124 Ga. 633, 641 ( 53 S.E. 193); Babson v. McEachin, 147 Ga. 143 (3) ( 93 S.E. 292); John Hancock Mut. Life Ins. Co. v. Baskin, 179 Ga. 86 ( 175 S.E. 251); Millen Hotel Co. v. Chastaine, 183 Ga. 172 ( 188 S.E. 4); Shearer v. LeMay, 184 Ga. 86 ( 190 S.E. 643). In the Meeks case, 117 Ga. 865, 867, supra, it is held: "to be a pending proceeding within the meaning of the code section, there must be a suit of some nature."
The Act of 1962 re-enacted Code § 3-202 verbatim but added a final sentence to the same: "For the purposes of this section, foreclosures and sales under power shall be considered pending litigation." The plaintiff in error correctly contends the portion of the Act of 1962 providing that "sales under power" constitute litigation within the meaning of the Act is unconstitutional. Clearly, this provision is a mere attempt by the legislature to construe the Code section, contrary to the previous holdings of this court above cited. In Parks v. State, 212 Ga. 433, 436 ( 93 S.E.2d 663), the principle is pronounced: "The Constitution provides that: `The legislative, judicial, and executive powers shall forever remain separate and distinct, and no person discharging the duties of one, shall, at the same time, exercise the functions of either of the others, except as herein provided.' Code Ann. § 2-123. A review of the cases dealing with this provision of the Constitution shows that this court has zealously protected each of the three branches of the government from invasion of its functions by the others whenever it has had the opportunity. In the early case of Calhoun v. McLendon, 42 Ga. 405, 407, it was stated: `In the dividing line of power between these co-ordinate branches we find here the boundary — construction belongs to the courts, legislation to the legislature. We can not add a line to the law, nor can the legislature enlarge or diminish a law by construction.'" See also McCutcheon v. Smith, 199 Ga. 685 ( 35 S.E.2d 144); Northside Manor v. Vann, 219 Ga. 298 ( 133 S.E.2d 32).
Since the jurisdiction of the Superior Court of Jenkins County depended upon the validity of the provision of the statute added by the Act of 1962, the above ruling disposes of the entire case.
Judgment reversed. All the Justices concur.