Franks v. Horton

261 S.E.2d 570, 244 Ga. 611, 1979 Ga. LEXIS 1346

Opinion

Bowles, Justice.

Appellants, the Franks, filed a complaint in equity to set aside a default judgment rendered against them in a previous civil action brought by appellee, Horton. They alleged the prior default judgment had been obtained by fraud unmixed with their own negligence. Appellee filed a motion to dismiss, alleging, inter alia, that the trial court lacked personal jurisdiction and that venue was improper. The trial court granted the motion to dismiss without specifying the ground. We affirm.

Appellants filed their complaint in Tift County, the county in which the original judgment had been entered. Appellants affirmatively alleged in the complaint that the appellee was a resident of Spalding County and the appellee admitted this in her answer. A complaint in equity to set aside a judgment must be brought in the county in which a defendant resides against whom substantial relief is prayed. Code Ann. § 2-4303. Bonneau v. Ohme, 244 Ga.184 (1979). Therefore, the trial court correctly dismissed appellants’ complaint. Anything to the contrary in Dew v. Hamilton, 23 Ga. 414 (1857) and Rawson v. Mills, 23 Ga. 597 (1857) is hereby disapproved to the extent that those cases apply to residents of the State of Georgia.

Submitted August 3, 1979 Decided October 2, 1979 Rehearing denied October 31, 1979. C. H. Hollingsworth, Jr., Anthony R. DeStefano, for appellants. Crosley & Kelley, David J. Kelley, for appellee.

Judgment affirmed.

All the Justices concur.