Ball v. Brunswick Pulp & Paper Co.

281 S.E.2d 571, 248 Ga. 106, 1981 Ga. LEXIS 901

• Court: Supreme Court of Georgia
• Decided: September 8, 1981
• Docket: 37663
• Status: Published

Opinion

Jordan, Chief Justice.

The appeal is from entry of a judgment sustaining a plea of improper venue.

The executrix and heirs of Carrie Lee Simmons filed this action in Liberty County seeking an order setting aside a timber contract and lease executed by Carrie Lee Simmons to Brunswick Pulp and Paper Company. The lands to which the contract and lease relate lie in Liberty County but the defendant is a resident of Glynn County. The trial court sustained the plea and dismissed the complaint. The executrix and heirs appeal.

Decided September 8, 1981. A. G. Wells, Jr., for appellants. John M. Gayner III, for appellee.

1. The action is in equity rather than being an action respecting title to land because the plaintiffs cannot recover on the strength of their own title; rather, they must rely upon the aid of a court of equity to set aside the timber contract and lease. Accordingly, venue lies in Glynn County, the county of residence of the defendant, rather than in Liberty County, the county where the land lies. Graham v. Tallent, 235 Ga. 47,50 (218 SE2d 799) (1975); Hawkins v. Pierotti, 232 Ga. 631 (208 SE2d 452) (1974);Frazier v. Broyles, 145 Ga. 642,646 (89 SE 743) (1916); Clayton v. Stetson, 101 Ga. 634, 638 (28 SE 983) (1897).

2. Neither is the present action maintainable in Liberty County under the provisions of Code Ann. § 22-404 (c) since it is an action to set aside, not to enforce, the subject contracts.

Judgment affirmed.

Hill, P. J, Marshall, Clarke, Smith and Gregory, JJ., concur.