Shannon v. Allen Automatic Transmission

322 S.E.2d 99, 172 Ga. App. 88, 1984 Ga. App. LEXIS 2409

• Court: Court of Appeals of Georgia
• Decided: September 12, 1984
• Docket: 68891
• Status: Published

Opinion

Banke, Presiding Judge.

Appellant Shannon filed suit in the State Court of Fulton County against Allen Automatic Transmission and its sole proprietor, Allen Locklear. The business, which is unincorporated, is located in Fulton County, while Locklear is a resident of Fayette County. This appeal is from an order granting Locklear’s motion to dismiss for lack of venue and also denying as moot a motion by the appellant for a protective order concerning discovery and for attorney fees in connection therewith. Held:

“The county of residence of a sole proprietorship is the county of residence of its proprietor.” Dowis v. Watson, 161 Ga. App. 749 (1) (289 SE2d 558) (1982). The record shows without dispute that Locklear, the only legal entity named as a defendant in the case, resides in Fayette County rather than Fulton County. The appellant’s contention that the venue question was not properly raised is without merit. However, the proper remedy was not dismissal of the complaint but transfer of the case to the appropriate forum, pursuant to the Uniform Transfer Rules promulgated by the Supreme Court to take effect on April 1, 1984. Uniform Transfer Rules, 251 Ga. 893 (1984). The dismissal is accordingly vacated, and the case is remanded to the trial court for determination of proper venue and transfer to the proper court. Accord Long v. Bruner, 171 Ga. App. 124 (318 SE2d 818) (1984).

Decided September 12, 1984. Albert R. Sacks, for appellant. Richard H. Johnston, for appellees.

Vacated and case remanded with direction.

Pope and Benham, JJ., concur.