Ellis v. Jenkins

295 S.E.2d 736, 250 Ga. 29, 1982 Ga. LEXIS 975

• Court: Supreme Court of Georgia
• Decided: October 6, 1982
• Docket: 39020
• Status: Published

Opinion

Clarke, Justice.

This is an appeal of an order in an equitable proceeding between parties who are tenants in common of certain real estate. The effect of the order is to enjoin defendant-appellant Ellis from instituting statutory partition proceedings. We reverse.

The plaintiffs-appellees contend their action is one for partition in equity. We cannot agree with this contention for the reason that the petition makes no mention of partition and contains no prayer for partition. It prays that Mrs. Ellis be enjoined from filing statutory partition proceedings and that the entire fee to the real estate be vested in the plaintiffs after payment of certain amounts of money to Mrs. Ellis. The fact that Mrs. Ellis is the holder of an undivided interest in the real estate is expressly alleged in the plaintiffs’ complaint.

Decided October 6, 1982. W. Barry Williams, for appellants. Roy V. Harris, for appellees.

The law provides that common owners of lands and tenements may utilize the courts to seek a partitioning either in equity or in law depending upon the circumstances. Ga. Code Ann. §§ 85-1501, 85-1504. Plaintiffs’ petition as it now stands even after amendment is not a petition for partition in equity. It is error to enjoin a defendant who is a tenant in common from filing proceedings for partition. If such a proceeding is filed either as a new action or as an amendment or counterclaim to the present action, the trial court would then be in a position to determine whether equitable partition or statutory partition is appropriate under the facts of this case.

Judgment reversed.

All the Justices concur.