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GRIMAUD et al. v. KNOX-GEORGIA HOMES, INC., et al.; and vice versa.
18514.
18519.
Petition for injunction. Before Judge Anderson. Richmond Superior Court. December 15, 1953.
CANDLER, Justice.
1. Where the controlling question in a case is presented by a cross-bill of exceptions, and the judgment of the trial court thereon is reversed, the writ or error issued upon the main bill of exceptions will be dismissed.
2. The verdict finding that the court had jurisdiction of the parties was unauthorized by the evidence.
3. A corporation of this State is not subject to a suit for equitable relief by injunction in a county other than that fixed by its charter as the county of its principal office; and this is true although the suit embraces a claim for damages.
On August 21, 1952, A. J. Grimaud, Nellie Grimaud and Mrs. Annie Grimaud instituted this litigation in the Superior Court of Richmond County against Knox-Georgia Homes, Inc., Richmond Hills, Inc., and J. M. Mills, as joint tortfeasors. The petition alleges that each of the two corporation proceeded against has an office and place of business in Richmond County; and that J. M. Mills, the individual defendant, also resides in that county. The prayers were for process; that an injunction issue to restrain the defendants from committing acts which constitute and amount to a continuing trespass; that damages be awarded for the injury already inflicted; and that general relief be granted. For their cause of action, the plaintiffs allege that the defendants, in specified ways, have damages their lands in a stated amount by causing the surface water on their adjacent lands to accumulate and flow in an unusual and abnormal way on their lands and thereby damage them in the way, manner, and respect pointed out in the petition. Each of the defendants filed separate pleas to the jurisdiction of the court, alleging therein that they were nonresidents of Richmond County. By its plea, the defendant Knox-Georgia Homes, Inc., alleged that its principal office, as fixed by its charter, was in McDuffie County, Georgia. The defendant Richmond Hills, Inc., alleged that its principal office, as fixed by its charter, was in Fulton County, Georgia. And the defendant J. M. Mills alleged that he was also a resident of Fulton County, Georgia. All of the defendants, by their separate pleas to the jurisdiction of the court, specifically alleged that they were nonresidents of Richmond County when this litigation was instituted. Subject to those pleas, the defendants interposed separate general and special demurrers, renewed them to the petition as three times thereafter amended, and separately answered the petition, averring that they had not damaged the plaintiff's property as charged in the petition or otherwise.
We will show in narrative form the evidence which the parties introduced, both in support of and against the pleas to the jurisdiction, which were separately interposed but jointly submitted to and tried by a jury. Knox-Georgia Homes, Inc., introduced without objection a properly certified copy of its charter, together with the proceedings on which it was obtained. By paragraph 7 of the charter, its principal office was located in Thomson, McDuffie County, Georgia. No evidence was introduced by the opposite party to refute this or to show any amendment to the charter. Richmond Hills, Inc., also introduced without objection a properly certified copy of its charter, together with the proceedings on which it was obtained. By paragraph 6 thereof, its principal office was located in Atlanta, Fulton County, Georgia. The opposite party introduced in evidence a certified copy of a return which all corporations, except banks, are required to make annually to the Secretary of State under 22-1703 of the Code of 1933 concerning the location of its principal office, as well as other information. This return, which was signed "Thomas D. Brazzell" and dated March 31, `952, shows that the principal office of Richmond Hills, Inc., is on Lumpkin Road, Augusta, Georgia. J. M. Mills, by deposition, testified that he "believed" he filed a second annual return with the Secretary of State and by that return showed that the principal office of Richmond Hills, Inc., is at 2420 Lumpkin Road, Augusta, Richmond County, Georgia. However, no evidence was introduced which showed or tended to show that any application had been made to the proper court for any charter amendment changing the location of the corporation's principal office from Atlanta, Fulton County, Georgia, to Augusta, Richmond County, Georgia. Respecting his plea to the jurisdiction, J. M. Mills testified: He was, at the time this suit was filed, a resident of Fulton County, Georgia, and lived with his family, consisting of a wife and two children, at 524 Old Ivy Road, N. E., Atlanta, Georgia. He had been a resident of Fulton County continuously since he moved to Georgia in 1951. He was a registered voter of Fulton County and voted there in the general election of 1952. He attended church in Atlanta, was a member of Elks Lodge 78, and had maintained offices in Atlanta continuously since 1951. He was by profession or trade a building contractor, specializing in the construction, development, and sale of subdivisions outside of Fulton County. While promoting, developing, and selling such subdivisions, he commuted between the place where they were and his home, which he owns in Atlanta and at which his family resided. He and two other business associates took an option on that property in Richmond County presently known as Richmond Hills. A charter for Richmond Hills, Inc., was obtained in the Superior Court of Fulton County, and the optioned property was acquired in the name of that corporation. He owned one-third of the stock in Richmond Hills, Inc., and was elected to be its first president. For a salary of $500 per month, plus expenses, he went to Augusta, Georgia, on March 5, 1952, for the sole purpose of constructing modern homes on the corporation's land and selling them to others for corporate profit. The relation between him and his business associates was not terminated when he went to Augusta, and it was his intention to return to Atlanta when the corporation's project was developed and disposed of, and it was never his intention to establish residence in Richmond County. Other subdivisions over the State had been similarly developed and handled by him. While in Augusta, and for a period of about three months, he stayed at the Bon Air Hotel and the corporation (Richmond Hills, Inc.) paid his hotel expenses. He frequently spent weekends with his family in Atlanta. His family remained at the Atlanta residence until June, 1952, when they, together with a part of his home furnishings, were moved to Augusta. His Atlanta house remained partly furnished, unoccupied, and when in Atlanta he used it. He intended for his family to stay with him in Augusta only during the time it took him to complete building operations for his corporation's subdivision. They returned to Atlanta and to the family residence about November 1, 1952. He wanted to build a new home for himself and family in Atlanta, and while his family was in
Augusta, he asked an associate to see if he could find someone who would like either to purchase or rent his Atlanta home, but neither a buyer nor a tenant was found. His family, however, was to remain in Augusta temporarily, and it was never his intention to reside there permanently. He purchased a garage apartment in Augusta, while working there, but never occupied it as a home. He and another party also purchased some vacant lots in Augusta for improvement and resale. He had gone to Augusta several times since November, 1952, for business reasons, but he and his family have in the meantime resided in Atlanta. The jury found against the pleas to the jurisdiction and a judgment was pursuantly entered.
The petition, after being thrice amended, was dismissed on general demurrer. To that ruling the plaintiffs excepted, and error is assigned on that judgment in the main bill of exception. Respecting the verdict on the pleas to the jurisdiction, the plaintiffs moved for a new trial, basing their motion on the usual general grounds and three special grounds, added by amendment. The amended motion was denied, and that judgment is properly excepted to by the defendants in a cross-bill of exceptions, which was timely tendered and certified.
(After stating the foregoing facts.) 1. The cross-bill of exceptions presents questions which relate to the trail court's jurisdiction of the defendants, and they will be considered and disposed of first. Query: Did the corporate defendants or either of them have its principal office in Richmond County when this litigation was instituted, or did the individual defendant Mills at that time reside in Richmond County? We will determine this question by dealing separately with each of the three defendants.
(c) And as to the defendant Mills, it is unnecessary for us to repeat the facts concerning the location of his residence. They demanded, as we see them, a finding by the jury that Mills resided in Fulton County when this litigation was instituted. It is true, of course, that he and his family temporarily occupied residential quarters in Augusta from June to November, 1952, but with no intention of making those quarters or that place their permanent home. "The domicile of every person of full age, and laboring under no disability, is the place where the family of such person shall permanently reside, if in this State. If he has no family, or they do not reside in this State, the place where such person shall generally lodge shall be considered his domicile." Code 79-401; Peacock v. Collins, 110 Ga. 281 (34 S. E. 611), where we said: "The domicile of a man having a family is, under section 1824 [presently Code 79-401] of the Civil Code, the place where his family 'shall permanently reside, if in this State,' the word 'permanently' being here used in contradistinction from the word 'temporarily.' " See, also Knight v. Bond, 112 Ga. 828 (38 S. E. 206), where the Peacock case was cited and followed as controlling authority.
For the reasons shown in (a), (b), and (c) above, the evidence did not authorize a finding by the jury that the defendants or any one or more of them resided in Richmond County when this suit for injunction and damages was brought against them.
2. The Constitution of this State, by article VI, section XIV, paragraph III, provides that equity cases must be tried in the county where a defendant resides against whom substantial relief is prayed. Code (Ann.) 2-4903. This constitutional provision applies to domestic corporations as well as to individuals. State of Ga. v. Atlantic Ice & Coal Co., 180 Ga. 285 (178 S. E. 743). "A corporation of this State is not subject to a suit for equitable relief by injunction in a county other than that fixed by its charter as the county of its principal office; and this is true although the suit embraces also a claim for past damages." Etowah Milling Co. v. Crenshaw, 116 Ga. 406 (42 S. E. 709); Georgia Land &c. Co. v. Savannah River Lumber Co., 150 Ga. 202 (103 S. E. 167). In this connection, see also Townsend v. Brinson, 117 Ga. 375 (43 S. E. 748); Baker v. Davis, 127 Ga. 649 (57 S. E. 62); Malsby & Co. v. Studstill, 127 Ga. 726 (56 S. E. 988). Since neither of the defendants resided in the county where this litigation was brought, it is not necessary for us to deal with that provision of the law relating to equitable relief against joint trespassers residing in different counties. However, see Code (Ann.) 2-4904; Townsend v. Brinson, supra; Railroad Commission v. Palmer Hardware Co., 124 Ga. 633 (53 S. E. 193).
As our judgment on the cross-bill of exceptions necessarily effects a final disposition of the case, adverse to the plaintiffs in error in the main bill of exceptions, it is needless for us to deal with the questions in the main bill.
Judgment reversed on the cross-bill of exceptions; main bill of exceptions dismissed. All the Justices concur.
Knox & Neal, Hull, Willingham, Towell & Norman, Sanders, Thurmond & Hester, Congdon, Harper & Leonard, contra.
Wallace Pierce, Pierce Brothers, Silvey & Tuggle, for plaintiffs in error.
ARGUED MARCH 8, 1954 -- DECIDED APRIL 12, 1954.
Saturday May 23 03:37 EDT


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