Opinion
16939.
FEBRUARY 16, 1950.
Equitable petition. Before Judge G. C. Anderson. Richmond Superior Court. October 6, 1949.
Randall Evans Jr., for plaintiff.
B. Lamar Tillman, for defendants.
Under Code § 3-601, no suitor may prosecute two actions in the courts at the same time, for the same cause, and against the same party; and if such suits are commenced at different times, the pendency of the former shall be a good defense to the latter. The petition showing that another suit which involved the same subject-matter (Mrs. Tucker's answer in the nature of a cross-petition in Tucker v. American Surety Co. of N. Y., ante, 533), was pending at the time the present suit was filed, the court did not err in sustaining a general demurrer and in dismissing the action. See, in this connection, Bird v. Trapnell, 148 Ga. 301 (1) ( 96 S.E. 417); Cook v. State Highway Board, 162 Ga. 84 (3) ( 132 S.E. 902); Hines v. Moore, 168 Ga. 451 (8) ( 148 S.E. 162).
Judgment affirmed. All the Justices concur, except Duckworth, C. J., who dissents. Head, J., concurs specially.
No. 16939. FEBRUARY 16, 1950.
On July 1, 1949, Mrs. Adele Louise Tucker filed in Richmond Superior Court, against W. Orrin Lea, a resident of Ware County, and Saint Paul Mercury Indemnity Company, a non-resident of Georgia, but who maintains an office in Richmond County, a petition which sought an equitable accounting between petitioner as ward, and Lea, as her guardian, from 1939 to 1949, and Saint Paul Mercury Indemnity Company, as security on Lea's bond, and a declaratory judgment declaring the rights and liabilities of each of the parties, and a judgment in favor of Mrs. Tucker, against each defendant for the proper amount shown to be due. The allegations of the petition were an elaboration of the facts set forth in Mrs. Tucker's answer in the nature of a cross-petition in Tucker v. American Surety Company of New York, ante. There was also a prayer to enjoin Lea from prosecuting the citation for settlement in the Court of Ordinary of Ware County until a full hearing and determination of her claims were had, and that Lea be required to return to Mrs. Tucker all of her jewelry, and for general relief.
The defendants demurred to the petition on general and special grounds, one of which was that the court was without jurisdiction, it appearing from the petition that other courts of this State have already taken jurisdiction of, and are retaining jurisdiction of, the subject-matter of this action.
After argument the court sustained the general demurrer and Mrs. Tucker excepted.
I concur in the judgment for the reason that in my opinion the jurisdiction of the action in so far as it relates to any acts or purported acts of the guardian is confined to the courts of the guardian's residence, in this case Ware County.