Opinion
38755.
DECIDED SEPTEMBER 8, 1982. REHEARING DENIED SEPTEMBER 23, 1982.
Interlocutory injunction. Fulton Superior Court. Before Judge Jenrette.
Frankel, Ervin, Hardwick, Tanenbaum, Fink Clark, William F. Clark, John S. Graettinger, Jr., for appellants.
Tom Pye, Durwood T. Pye, Smith, Currie Hancock, Steele B. Windle III, for appellee.
The appeal seeks reversal of a temporary injunction entered by the Superior Court of Fulton County enjoining further prosecution of a civil action in the Superior Court of DeKalb County.
Troop Construction Company, a general contractor, sued John D. Davis, d/b/a Davis Heating Cooling, a heating and air-conditioning subcontractor, in the Superior Court of DeKalb County, alleging breach of a contract for the construction of Dornbush's house. Davis, a DeKalb County resident, answered the complaint then counterclaimed, alleging breach of the same contract by Troop.
Davis then filed the present action in the Superior Court of Fulton County against Troop and Dornbush, Fulton County residents, raising the issues already pending in the DeKalb County action, adding Dornbush as a party defendant and raising new issues because Dornbush was a party. The Fulton court enjoined further prosecution of the DeKalb suit by Troop on the ground that litigation of all the issues in the Fulton suit would avoid a separate suit by Davis against Dornbush on the same issues. Troop appeals. We reverse.
Davis made no attempt to join Dornbush as a party in the DeKalb suit. Venue was improper as to Dornbush in DeKalb County, but Dornbush, a Fulton County resident, could have waived venue and allowed the action to be tried in DeKalb County. Code Ann. §§ 2-4306, 81A-112 (h) (1). The DeKalb Superior Court had jurisdiction to entertain any claim or defense at law or in equity. Cf., Norment v. Wofford, 246 Ga. 281 ( 271 S.E.2d 214) (1980). Not having attempted and failed to join Dornbush as a party in the DeKalb proceedings, Davis cannot demonstrate the inadequacy of the DeKalb legal proceedings to adjudicate the issues and the need of equitable relief in the Fulton court. Code Ann. §§ 55-101, 55-103. Cf., Sherrer v. Hale, 248 Ga. 793, 797 (2) ( 285 S.E.2d 714) (1982); Robertson v. Barber, 229 Ga. 553, 555 (2) ( 193 S.E.2d 9) (1972).
The Fulton court should have denied Davis' motion for injunctive relief and should have sustained Troop's motion to dismiss.
Judgment reversed. All the Justices concur, except Hill, P. J., and Smith, J., who dissent.