Beacham v. Beacham

22 S.E.2d 787, 195 Ga. 9, 1942 Ga. LEXIS 675

• Court: Supreme Court of Georgia
• Decided: November 12, 1942
• Docket: 14321.
• Status: Published

Opinion

Hewlett, Justice.

1. Where an equitable petition seeking to have a judgment declared void and canceled is brought in the county where the judgment was rendered, against a defendant who resides in that county, and a defendant who resides in a different county, the jurisdiction of the court of the defendant residing in another county can be raised only by him, either by plea, demurrer, or motion, and can not be urged by a defendant residing in the county in which the suit is instituted. Rice v. Tarver, 4 Ga. 571, 592; Roberts v. Burnett, 164 Ga. 64 (5) (137 S. E. 773). The instant case differs from Beacham, v. Cullens, 194 Ga. 739 (22 S. E. 2d, 508), where a defendant residing in Treutlen County and the resident defendant interposed separate dedemurrers alleging that no substantial equitable relief was prayed against the defendant who resided in Laurens County.

2. Where a judgment based on a replevy bond was rendered in the city court of Dublin, Laurens County, against C. K. Beacham as principal, and Mrs. Sallie Beacham as surety, in order for the surety to set aside the judgment, on the ground that the signing of her name was a forgery, it is proper to make all parties to the judgment, who would be affected by setting it aside, parties defendant to the proceeding instituted for that purpose. Code, § 37-1004; Miller v. Butler, 137 Ga. 90 (72 S. E. 913).

3. The court did not err, for any reason assigned, in overruling the demurrer interposed by the resident defendant.

Judgment affirmed.

All the Justices concur. Blachshecur- & Blachshear, for plaintiff in error. E. L. Stephens, contra.