Amsler & Ferguson v. Lamar & Rankin Drug Co.

92 S.E. 55, 146 Ga. 635, 1917 Ga. LEXIS 414

• Court: Supreme Court of Georgia
• Decided: April 10, 1917
• Status: Published

Opinion

Atkinson, J.

1. Equity cases shall be tried in the county where a defendant resides against whom substantial relief is prayed, except that in cases of injunction to stay pending proceedings the ■ suit may be brought in the county where the proceedings are pending, provided no relief is prayed as to matters not included in such litigation. Civil Code, §§ 6540, 5527.

2. In an equitable suit to enjoin a levying officer from paying over money in his hands on a chattel mortgage duly foreclosed, to which no counter-affidavit has been filed, where there is no complaint of misconduct upon his part, the levying officer is not a party against whom substantial relief is prayed, and the venue of a suit instituted by the mortgagor against the mortgagee and such officer, to enjoin the collection of the mortgage debt, is in the county of the residence of the mortgagee. Malsby v. Studstill, 127 Ga. 726 (56 S. E. 988).

3. The petition was properly dismissed on demurrer.

Judgment affirmed.

All the Justices concur.