Opinion
32990.
DECIDED APRIL 28, 1950. REHEARING DENIED MAY 19, 1950.
Action for damages; from Fulton Superior Court — Judge Shaw. January 10, 1950.
Gordon A. Smith, Alton T. Milam, Robert G. Smith, James G. Lamar, for plaintiff.
Nall Sterne, for defendant.
The act of 1947 (Ga. L. 1947, p. 305), does not authorize the bringing of a joint tort action against a resident of Georgia and a non-resident in a county wherein the resident defendant does not reside.
DECIDED APRIL 28, 1950. REHEARING DENIED MAY 19, 1950.
Genia Hays sued Mrs. Fred C. Jones as administratrix of Fred C. Jones, a resident of Lumpkin County, and Mrs. Claudine Lindsay, a non-resident of Georgia, in the Superior Court of Fulton County, Georgia, to recover damages for the alleged joint negligence of the defendants. Mrs. Jones demurred to the petition on the ground that the Superior Court of Fulton County was without jurisdiction of her and that the Superior Court of Lumpkin County, Georgia, had jurisdiction. The court sustained the demurrer and dismissed the action as to Mrs. Jones, and the plaintiff excepted.
The defendant Mrs. Jones is alleged to be a certificated common carrier of passengers but jurisdiction is not contended for by reason of that fact because of the ruling in Youmans v. Hickman, 179 Ga. 684 ( 177 S.E. 238). Jurisdiction as to Mrs. Jones is contended for under the act of 1947 (Ga. L. 1947, p. 305), which provides that actions against nonresidents under the act of 1937, pages 732-34 shall be brought in the county in which the accident, injury or cause of action originated, or in the county of the residence of the plaintiff, if a resident of Georgia. The act of 1947 does not authorize an action of this kind to be brought against an individual resident of Georgia outside of the county of his or her residence. The principle of this case is controlled by Lowe v. Roberts, 59 Ga. App 890 (2 S.E.2d 748), and Benton Rapid Express v. Johnson, 202 Ga. 597 ( 43 S.E.2d 667). The Constitution (Code, Ann. § 2-4906) provides: "All other civil cases shall be tried in the county where the defendant resides . ." This case does not fall within any exception contained in the Constitution. The Constitution (Code, Ann., § 2-4904), relative to actions against joint trespassers, refers only to resident joint trespassers. If the provisions of the act of 1947 in certain instances precludes a joint action against a resident and non-resident in such a case as this, it is a matter of legislative and not judicial concern.
The court did not err in sustaining the demurrer and in dismissing the action as to Mrs. Jones.
Judgment affirmed. Sutton, C.J., and Worrill, J., concur.