Opinion
16113.
MARCH 19, 1948.
Injunction. Before Judge Porter. Chattooga Superior Court. December 1, 1947.
Elijah A. Brown and Otey B. Mitchell, for plaintiffs in error.
Graham Wright, contra.
1. While it is the general rule that the pendency of a prior suit in a district court of the United States is not a bar to a suit in a State court between the same parties and for the same cause of action, an exception to this rule is, "that where the Federal court has first acquired possession of the res, or has taken steps equivalent to exercising dominion over it, that court will thereby acquire exclusive jurisdiction of the case." Inter-Southern Life Ins. Co. v. McQuarie, 148 Ga. 233 ( 96 S.E. 424); Hines Hobbs v. Rawson, 40 Ga. 356 (2 Am. R. 581); Young v. Hamilton, 135 Ga. 339, 346 ( 69 S.E. 593, 31 L.R.A. (N.S.) 1057, Ann. Cas. 1912 A, 144); Royster Guano Co. v. Stedham, 178 Ga. 217 ( 172 S.E. 555).
2. The petition in the present case shows that condemnation proceedings were instituted in the District Court of the United States for the Northern District of Georgia to condemn property located in Chattooga County, and a claim was made by a nonresident of Georgia to the funds deposited in the registry of the district court under such proceedings. Since condemnation proceedings are in the nature of an action in rem, the Federal court had exclusive jurisdiction to determine all controversies in relation thereto, and the Superior Court of Chattooga County had no jurisdiction of a cause of action seeking a declaratory judgment against such nonresident claimant as to the ownership of the funds in the Federal court.
3. The dispute in this case is as to the ownership of funds in the registry of the Federal court, paid as compensation for the condemnation of property. Such a case is not one "respecting title to land," which must be brought in the superior court of the county where the land lies.
4. The petition in this case seeks a declaratory judgment against a non-resident of the State of Georgia, and service is sought to be perfected by publication. Since the only controversy is the ownership of funds in the custody of the Federal court located at Rome, in Floyd County, Georgia, the Superior Court of Chattooga County had no jurisdiction of the nonresident defendant. Malsby v. Simmons Manufacturing Co., 191 Ga. 477 ( 12 S.E.2d 880).
5. It was error to overrule the pleas of the defendants to the jurisdiction of the court.
Judgment reversed. All the Justices concur, except Wyatt, J., who took no part in the consideration or decision of this case.
No. 16113. MARCH 19, 1948.
Beulah Shropshire, as executrix of the estate of Wesley Shropshire, deceased, and Mrs. Ann Glass, brought a petition in Chattooga Superior Court. In the first count they alleged: Mrs. Lollie K. Davis is a nonresident of Georgia, residing in the State of Florida, her address being unknown to the petitioners. The petitioners were the owners of described real estate in Chattooga County prior to the condemnation thereof by the United States Government. Such property was condemned by the United States government on or about May 28, 1940, for the sum of $785.99, which was paid by the Government into the registry of the court. Mrs. Davis is claiming to be the owner of such fund and is seeking in the Federal court of the United States to have such fund awarded to her. The property having been condemned, the petitioners can not maintain an action in ejectment or equity to establish their title thereto, and are relegated to an action for declaratory judgment as to the title to the property. The petitioners are the owners of the title to the property, by reason of the fact that the property was held by Wesley Shropshire and John S. Cleghorn under a tax deed, an abstract of which is attached as an exhibit and made a part of the petition. The tax deed was valid and lawful and conveyed the fee-simple title to the property. Mrs. Davis is represented by Elijah A. Brown as attorney at law, and Mr. Brown resides in Fulton County, Georgia. The petitioners are entitled to a declaratory judgment against Mrs. Davis as to the ownership of the property, she being the only other person at present claiming the funds as the owner of the property. The prayers were: that a declaratory judgment be entered declaring the title to the funds to be vested in the petitioners; that process issue requiring Mrs. Davis and her attorney, Mr. Brown, to appear in court; that service be perfected upon Mrs. Davis by publication; that Mrs. Davis and Mr. Brown be temporarily and permanently enjoined and restrained from further prosecuting her claim to the funds in the District Court of the United States for the Northern District of Georgia, or in any other court, either by herself or by her attorney, until the final determination of this cause; that a second original issue for service on Mr. Brown, of Fulton County, attorney for Mrs. Davis; and for other relief. The second count of the petition is the same as the first except that title to the property is alleged under color of title of the tax deed and possession for seven years.
A temporary restraining order was issued against Mrs. Davis and her attorney to enjoin them from further prosecuting. in the District Court of the United States for the Northern District of Georgia, Rome Division, or in any other court, any claim to the funds arising from the condemnation of the lands described in the petition. Mrs. Davis and her attorney filed special pleas to the jurisdiction of the court and demurrers to the petition, which were overruled by the trial court. The exception here is to the overruling of the pleas to the jurisdiction and the demurrers.