Bruce v. Neal Bank , 147 Ga. 392 ( 1917 )

Hill, J.

(After stating the foregoing facts.) The third ground of the-demurrer raises the question of the jurisdiction of the superior court of Wilcox county, on the ground that the Neal Bank and its receiver are the only defendants against whom substantial relief is prayed, that these defendants are residents of Fulton and not of Wilcox county, and therefore that the superior court of Fulton county has jurisdiction of the case. Section 6540 of the Civil Code of 1910 provides that “Equity cases shall be tried in the county where a defendant resides against whom substantial relief is prayed.” It is contended by the plaintiff that this is a proceeding to set aside a judgment rendered by the superior court of Wilcox county, and that no other court in the State has jurisdiction to entertain a petition for this purpose; and she cites the Civil Code, § 5965, to support that contention, which section provides that the judgment of a court of competent jurisdiction may be set aside by a decree in equity, “for fraud, accident, or mistake, or acts of the adverse party unmixed with the .negligence or fault of the complainant;” but this last section can not be invoked by the plaintiff to give jurisdiction to the court of Wilcox county, for to allow it would offend the constitutional provision contained in § 6540, quoted above. Nor was this a proceeding under § 5962, which declares that “‘All motions to arrest or set aside a judgment must be made to the court by whom such judgment was rendered, and of which motion the opposite party must have reasonable notice.” It will be observed that this section applies only to motions made for the purpose of setting aside judgments. In motions to set aside, only parties to the record can make a motion, and for defects not amendable which appear on the face of the record or pleading. Civil Code, § 5957. Mrs. Bruce was not a party to the judgment she seeks to set aside. She is only a nominal party suing for the’use of the bank, and alleges that she had no notice of the contents .of the pleadings. Whatever right she has to maintain this suit, if any, must be asserted in the' county of the defendants’ residence against which substantial relief is prayed; and that county is Fulton. The prayers of the petition are to set aside the judgment obtained in Wilcox county, which was in favor of the Neal Bank of Fulton county, and for injunction, etc. If the petition be unobjectionable for other reasons, and the,plaintiff establishes her right to the relief sought, these prayers could be granted in Fulton county, where the defendants reside against' whom substantial relief is prayed. Under the allegations of the petition the court did not err in dismissing it for want of jurisdiction. Amsler v. Lamar & Rankin Drug Co., 146 Ga. 635 (92 S. E. 55) ; Babson v. McEachin, 147 Ga. 143 (93 S. E. 292).

Judgment affirmed.

All the Justices concur, except Fish, C. J., absent.