---
title: Ga. Const. Art. VI, Sec. II, Para. III. Equity cases.
collection: code
id: ga-const:art-vi-sec-ii-para-iii
cite_as: Ga. Const. Art. VI, Sec. II, Para. III
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---

# Ga. Const. Art. VI, Sec. II, Para. III. Equity cases.

A constitution provision shown as in force is in force as printed in the volume. A court decision can make a printed provision unenforceable without changing the volume, and the volume does not record that.

Equity cases shall be tried in the county where a defendant resides against whom substantial relief is prayed.

## Cross References

Vesting of exclusive jurisdiction over equity cases in superior courts, Ga. Const. 1983, Art. VI, Sec. IV, Para. I, and § 23-1-1.

## Law Reviews

For article, ‘‘Current Problems With Venue in Georgia,’’ see 12 Ga. St. B.J. 71 (1975). For survey article on trial practice and procedure, see 34 Mercer L. Rev. 299 (1982).

For comment on Chase v. Endsley, 165 Ga. 292, 140 S.E. 876 (1927), see 1 Ga. L. Rev. 49 (1927). For comment on Bennett v. Bagwell & Stewart, Inc., 214 Ga. 115, 103 S.E.2d 561 (1958), holding that as a nuisance is a continuing trespass, a court in equity will enjoin it in the county of the resident defendant even though he is only an agent or employee of the nonresident defendant, see 21 Ga. B.J. 564 (1959).

## 1976 Constitution.

Art. VI, Sec. XIV, Para. III.

## This Constitutional Provision Apcannot Be Altered by Legislative Encontradiction to General Law.

The General Assembly has no right to provide that a natural person, an individual, who lives and has a domicile and residence in one county, and the individual’s domicile and residence is fixed there under the law as it stands, should be deemed also to be a resident, for certain purposes, of another county. A general law may fix the general place of residence; but when an individual has a residence and domicile fixed and established in accordance with the law, the legislature cannot declare that the individual may also be a resident of another county at the same time. Youmans v. Hickman, 179 Ga. 684, 177 S.E. 238 (1934).

This paragraph is inapplicable to a defendant who is a nonresident of this state. Moody v. Mendenhall, 238 Ga. 689, 234 S.E.2d 905 (1977) (see Ga. Const. 1983, Art. VI, Sec. II, Para. III).

## Construction of Other Acts.

The courts in construing an Act of the General Assembly will, if possible, ascribe to it a meaning so as to make it square with this paragraph. Newman Motors, Inc. v. Arrington, 194 Ga. 569, 22 S.E.2d 163 (1942) (see Ga. Const. 1983, Art. VI, Sec. II, Para. III).

## Removal of Trustee Not Case Contemplated by Paragraph.

An application to remove a trustee, addressed to the judge at chambers, was not ‘‘a case’’ within the meaning of this paragraph. This paragraph relates only to equitable petitions filed in the superior court and upon which a trial by jury may or must be had. Heath v. Miller, 117 Ga. 854, 44 S.E. 13 (1903), overruled on other grounds, 224 Ga. 440, 162 S.E.2d 294 (1968) (see Ga. Const. 1983, Art. VI, Sec. II, Para. III).

An action to enjoin a foreclosure under a power of sale must be brought in the county where the defendant resides. Nylen v. Barbaris, 232 Ga. 79, 205 S.E.2d 303 (1974).

Cited in DeLacy v. Hurst, Purnell & Co., 83 Ga. 223, 9 S.E. 1052 (1889); Bishop v. Brown, 138 Ga. 771, 76 S.E. 89 (1912); Clark v. Hilliard, 19 Ga. App. 514, 91 S.E. 926 (1917); Amsler & Ferguson v. Lamar & Rankin Drug Co., 146 Ga. 635, 92 S.E. 55 (1917); Babson v. McEachin, 147 Ga. 143, 93 S.E. 292 (1917); Bank of East Point v. Dupre, 152 Ga. 547, 110 S.E. 240 (1922); Mansfield v. Gray, 153 Ga. 414, 112 S.E. 646 (1922); Holmes v. Holmes, 153 Ga. 790, 113 S.E. 81 (1922); Burkhalter v. Minter-Smith Hdwe. Co., 160 Ga. 307, 127 S.E. 852 (1925); Georgia Creosoting Co. v. Moody, 41 Ga. App. 701, 154 S.E. 294 (1930); Sanders v. Hinton, 171 Ga. 702, 156 S.E. 812 (1931); South Ga. Trust Co. v. Barlow, 172 Ga. 166, 157 S.E. 326 (1931); Mallory v. Clay County, 173 Ga. 59, 159 S.E. 578 (1931); Palmer v. Carson Naval Stores Co., 177 Ga. 734, 171 S.E. 262 (1933); Tribble v. Knight, 178 Ga. 804, 174 S.E. 626 (1934); John Hancock Mut. Life Ins. Co. v. Baskin, 179 Ga. 86, 175 S.E. 251 (1934); Cone v. Davis, 179 Ga. 749, 177 S.E. 558 (1934); Sweat v. Arline, 186 Ga. 460, 197 S.E. 893 (1938); Kinney v. Crow, 186 Ga. 851, 199 S.E. 198 (1938); Marshall v. Marthin, 192 Ga. 613, 15 S.E.2d 861 (1941); Behr v. City of Macon, 194 Ga. 334, 21 S.E.2d 169 (1942); Hanleiter v. Spearman, 200 Ga. 289, 36 S.E.2d 780 (1946); Brown v. Mathis, 201 Ga. 740, 41 S.E.2d 137 (1947); Continental Carriers, Inc. v. Reese, 203 Ga. 433, 46 S.E.2d 927 (1948); Rylee v. Abernathy, 210 Ga. 673, 82 S.E.2d 220 (1954); Seckinger v. Citizens & S. Nat’l Bank, 213 Ga. 586, 100 S.E.2d 587 (1957); State Hwy. Dep’t v. Southern Ry., 215 Ga. 71, 108 S.E.2d 699 (1959); Gunby v. Harper, 216 Ga. 94, 114 S.E.2d 856 (1960); North Am. Acceptance Corp. v. Ramey, 217 Ga. 476, 123 S.E.2d 253 (1961); Youmans v. Steele, 217 Ga. 747, 125 S.E.2d 215 (1962); Oxford v. Sanders, 217 Ga. 820, 125 S.E.2d 483 (1962); Dependable Ins. Co. v. Gibbs, 218 Ga. 305, 127 S.E.2d 454 (1962); Pearson v. Walker, 218 Ga. 469, 128 S.E.2d 328 (1962); Modern Homes Constr. Co. v. Mack, 218 Ga. 795, 130 S.E.2d 725 (1963); Rossville Crushed Stone, Inc. v. Massey, 219 Ga. 467, 133 S.E.2d 874 (1963); Modern Homes Constr. Co. v. Burke, 219 Ga. 710, 135 S.E.2d 383 (1964); Kimsey v. Caudell, 109 Ga. App. 271, 135 S.E.2d 903 (1964); Gibson v. Hodges, 222 Ga. 434, 150 S.E.2d 651 (1966); Niedernhofer v. DeLoach, 222 Ga. 535, 150 S.E.2d 662 (1966); Bloodworth v. Bloodworth, 225 Ga. 379, 169 S.E.2d 150 (1969); Midland Nat’l Life Ins. Co. v. Emerson, 121 Ga. App. 427, 174 S.E.2d 211 (1970); J.D. Jewell, Inc. v. Hancock, 226 Ga. 480, 175 S.E.2d 847 (1970); Register v. Stone’s Indep. Oil Distribs., 122 Ga. App. 335, 177 S.E.2d 92 (1970); Chamblee Constr. Co. v. Pickett, 227 Ga. 421, 181 S.E.2d 32 (1971); Stanfield v. Brewton, 228 Ga. 92, 184 S.E.2d 352 (1971); Hallmark Properties, General Consideration (Cont’d) Inc. v. Slater, 229 Ga. 432, 192 S.E.2d 157 (1972); Pope v. Cokinos, 231 Ga. 79, 200 S.E.2d 275 (1973); Graham v. Tallent, 235 Ga. 47, 218 S.E.2d 799 (1975); Schuehler v. Pait, 239 Ga. 520, 238 S.E.2d 65 (1977); Scott v. Atlanta Dairies Coop., 239 Ga. 721, 238 S.E.2d 340 (1977); Peacock v. Nat’l Bank & Trust Co., 241 Ga. 280, 244 S.E.2d 816 (1978); Shaheen v. Dunaway Drug Stores, Inc., 246 Ga. 790, 273 S.E.2d 158 (1980); Dennard v. Freeport Minerals Co., 250 Ga. 330, 297 S.E.2d 222 (1982); Georgia Power Co. v. Harrison, 253 Ga. 212, 318 S.E.2d 306 (1984); Miller v. Bryant, 266 Ga. 584, 468 S.E.2d 762 (1996); Abrams v. Massell, 262 Ga. App. 761, 586 S.E.2d 435 (2003).

Proper Venue

The test for determining venue of an equitable action in Georgia is not made to depend on the technical name given to the parties defendant. Bennett v. Blackshear Mfg. Co., 183 Ga. 240, 187 S.E. 865 (1936).

## Venue of Equity Actions.

Venue of equitable petition to enjoin levy of an execution and advertisement of land levied upon, and to set aside the judgment on which it issued, and where no complaint of misconduct on the part of the levying officer is alleged, is the county of the residence of the judgment plaintiff, if a resident of this state. Harrington v. Bryan, 169 Ga. 382, 150 S.E. 555 (1929); Whiteley v. Downs, 174 Ga. 839, 164 S.E. 318 (1932).

This also applies to a prayer for cancellation of a transfer of execution by the levying officer, the marshal and the clerk of the superior court being mere nominal parties. Interstate Bond Co. v. Lee, 182 Ga. 238, 184 S.E. 866 (1936).

Venue of petition for injunction, cancellation of deeds, and other equitable relief, in which it is sought to have a conveyance of land delivered up and cancelled, may be brought in the county of the residence of the grantee or in that of the grantor. Planters Cotton Oil Co. v. McCurley, 199 Ga. 104, 33 S.E.2d 270 (1945).

Assuming that O.C.G.A. § 53-7-54(b) created a cause of action against third-parties, as the trust created by the statute was a creature of equity jurisdiction, under Ga. Const. 1983, Art. VI, Sec. II, Para. III, venue for such actions was in the county where a defendant resided. Thus, where a contempt petition was filed pursuant to the statute, the motion to transfer venue filed by two lawyers and their law firm should have been granted as neither lawyer resided in the forum county and their law firm was not located in that county. Rader v. Levenson, 290 Ga. App. 227, 659 S.E.2d 655 (2008).

## Venue of Action Against Public Nuisance.

In an injunctive action solely against the owner of the property on which an alleged public nuisance is being operated, the action must be brought in the county of the residence of the defendant, as required by Ga. Const. 1983, Art. VI, Sec. II, Para. III. This is true even though O.C.G.A. § 3-10-8 states that the action is to be filed in the county where the nuisance exists, since the constitutional mandate must control. Chancey v. Hancock, 225 Ga. 715, 171 S.E.2d 302 (1969); Hopkins v. Baker, 258 Ga. App. 14, 572 S.E.2d 716 (2002).

Place of filing petition for interpleader when claimants reside

## In Different Counties.

A petition for interpleader is an equitable proceeding. Substantial relief is prayed, so far as the stakeholders are concerned, against each of the persons claiming the fund; and, therefore, where the claimants reside in different counties, the petition may be properly filed in the county of the residence of either. The same principle is applicable where the original action is brought in a jurisdiction where the stakeholder is subject to suit, and the stakeholder’s response is in the nature of interpleader, and one of the claimants to the stakeholder’s funds is subject to the court’s jurisdiction though other claimants reside in different counties. Williams v. Overstreet, 230 Ga. 112, 195 S.E.2d 906 (1973).

Venue proper in county of any one of two or more defendants of differ-

## Ent Counties.

If substantial relief prayed is against two or more defendants residing in different counties, the suit may be brought in the county of the residence of either. O’Hara v. Jacobs, 191 Ga. 5, 11 S.E.2d 199 (1940).

Where plaintiff administratrix alleged that defendants entered into a conspiracy to fraudulently procure transfer to them by decedent of all of the decedent’s real and personal estate, that the confederates had made a division of the fruits of their conspiracy and accordingly prayed for appropriate substantial equitable relief against each for benefit of the estate, the defendants were properly joined in the equitable suit and venue of that suit was laid in a county where any one of the defendants resided against whom substantial equitable relief was prayed. Hayes v. Hayes, 214 Ga. 624, 106 S.E.2d 790 (1959).

## Injunctions.

Fact of praying for an injunction against a defendant does not in all events confer right to file the equitable petition in county of defendant’s residence, or to draw to that county residents of other counties. Carter v. Grogan, 230 Ga. 249, 196 S.E.2d 434 (1973).

Injunction to restrain continuing

## Trespass.

Where a petition for injunction, brought in the county where one defendant resides, seeks relief against joint trespasses by all of the defendants, the court is not without jurisdiction, even though all except one defendant are residents of other counties of the state, and even though the resident defendant, as an employee or agent of other defendants, may have been acting only under their command or authority in the commission of the trespasses. Hoch v. Candler, 190 Ga. 390, 9 S.E.2d 622 (1940).

This is true, even though the resident defendant may have been acting only as agent of or under the command, direction, or authority of the other defendants in the commission of the trespasses. Baggett v. Linder, 208 Ga. 590, 68 S.E.2d 469 (1952).

Where a petition for injunction brought in county where one defendant resides, seeks to restrain a continuing trespass which all defendants are committing, the court is not without jurisdiction to grant relief, even though all except the one defendant are residents of other counties in the state. Bennett v. Bagwell & Stewart, Inc., 214 Ga. 115, 103 S.E.2d 561 (1958), commented on in 21 Ga. B.J. 564 (1959).

Bankruptcy trustee of insolvent


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