Digital Commons @ Georgia Law Popular Media Faculty Scholarship 10-1-1975 Current Problems with Venue in Georgia C. Ronald Ellington University of Georgia School of Law, [email protected] Repository Citation Ellington, C. Ronald, "Current Problems with Venue in Georgia" (1975). Popular Media. 79. https://digitalcommons.law.uga.edu/fac_pm/79 This Article is brought to you for free and open access by the Faculty Scholarship at Digital Commons @ Georgia Law. It has been accepted for inclusion in Popular Media by an authorized administrator of Digital Commons @ Georgia Law. Please share how you have benefited from this access For more information, please contact [email protected]. Current Problems With Venue In Georgia by C. Ronald Ellington Georgia's first constitution, the included an explicit provision constitutional right."6 This state- Constitution of 1777, contained governing the place of venue for ment by Justice Lumpkin still a section providing that "all mat- equitable actions," and with the aptly describes tile prevailing ju- ters in dispute between contend- adoption of the Constitution of dicial attitude toward Georgia's ing parties, residing in different 1868, 4 all the present-day rules venue requirements. counties, shall be tried in the of venue had been fixed as part On the other hand, over the county where the defendant re- of the fundamental law of the years many of the rules govern- sides, except in cases of real state." ing trial practice and procedure estate, which shall be tried in There were, notwithstanding in Georgia have been modern- the county where such real the hierarchy of the venue rules ized and revised in keeping with estate lies."' The practice of in our structure of laws, some contemporary needs and con- specifying rules of venue in the early objections from members cerns.7 In 1966 the General As- constitution thus dates from the of the Bar that these venue rules sembly adopted the Civil Prac- very beginning of our state and were being applied in an overly tice Act, Rule 1 of which pro- has been repeated and expanded technical way that worked to claims that its provisions "shall in subsequent constitutional re- defeat, rather than further, the be construed to secure the just, visions. The Constitution of cause of justice. These objec- speedy, and inexpensive deter- 1798, for example, added the rule tions were met in 1906 by the mination of every action."' Two that joint obligors, residing in firm rejoinder of Justice Lump- important provisions in the CPA different counties, may be sued kin that "the right to be sued in for promoting judicial economy in the county of residence of the proper county is not merely and efficiency are Rule 14 gov- either.2 The Constitution of 1861 technical, but is a substantial, erning impleader and Rule 13 VOL. 12 / NO. 2 / OCTOBER 1975 HeinOnline -- 12 Ga. St. B. J. 71 1975-1976 dealing with counterclaims. often publicized backlog in trial to contribution could be proced- Impleader, or third-party prac- court calendars, the time has urally enforced through an im- tice, is the procedure by which come for a critical assessment pleader action, the supreme court a defendant can bring into the of the interaction of venue and ruled that such an action was in action one that he claims is lia- the rules authorizing impleader the nature of an independent ble to him for all or part of and counterclaims in the CPA. suit that could be maintained plaintiff's claim against him. only in the county of the resi- Impleader and the Legacy of dence of the alleged joint tort- Similarly, Rule 13 seeks to Register v. Stone feasor."4 This conclusion, rea- promote the joinder of claims to soned the court, was demanded expedite the resolution of all the In the well-known case of Register v. Stone's Independent because under the constitution controversies between the par- 1 2 a defendant is entitled to be sued ties in one suit to avoid a circuity Oil Distributions, Inc. the su- preme court held that venue in the county of his residence of actions and multiple litigation. must be independently estab- and a procedural rule in the CPA To these ends Rule 13(h) author- lished before third-party defen- could not expand the venue of izes the joinder of additional 5 parties for dants could be impleaded under such actions." the purpose of adju- The result in Register has been dicating a counterclaim that has Rule 14. The factual situation in Register illustrates and typi- both criticized 6 and defended been asserted to dispose of an as unavoidable. 7 Certainly, it is action in its entirety and to grant fies the kind of case that im- unfortunate and should have complete pleader was devised to handle; relief to all the con- been avoided if possible. cerned parties.' yet, the Georgia venue require- And, ments, as construed by the court, Judge Eberhardt, writing for the While the Georgia appellate barred its use. court of appeals in the case be- courts have been receptive to In Register the plaintiff, a Mrs. low, believed that it could be the advantages offered by im- Bailey, commenced an action in avoided.'" The approach fol- 0 pleader and counterclaims,1 the Dodge Superior Court seek- lowed by the court of appeals they have rigorously and unduly ing damages from various de- was to view the impleader action adhered to the constitutional fendants who she alleged were as an ancillary proceeding close- mandate that in civil actions a jointly responsible for a multiple ly connected with and arising defendant is entitled to be sued vehicle collision that injured her out of the dispute in the main in the county of his residence, husband. Although some of the action. Hence, the need to estab- unless the venue for the action defendants resided in counties lish venue independently was is controlled by one of the speci- other than Dodge, venue was obviated. Under the approach fied exceptions contained in the proper against all the co-defen- adopted by the court of appeals, Constitution. dants in the forum for the pur- the venue for the third-party ac- Viewed in the abstract, per- pose of plaintiff's original action tion was simply predicated on haps, this ancient rule of venue because joint tortfeasors may be the venue established in the main is easy to apply and seems to sued in the county of residence action. strike a sensible balance between of any one defendant. 13 How- This, of course, is the approach the interests of plaintiffs and de- ever, after filing suit plaintiff followed in federal practice fendants, although the modern amended her complaint to strike trend is to give the plaintiff a Register as a defendant. Stone, wider choice of places of venue one of the originally named de- by allowing civil actions to be fendants, then sought to implead brought as well where "a sub- Register as a third-party defen- stantial part of the events or dant in the main action by con- omissions giving rise to the claim tending that Register was liable occurred."'" However, in prac- through contribution to Stone for tice the results dictated by venue a pro rata share of any verdict concerns have often been less and judgment returned in favor than sensible. The availability of the plaintiff against Stone. of obtaining venue for the action Register moved to dismiss the C. Ronald Ellington is Associate against the defendant is as im- third-party complaint on the Professor of Law at the portant as securing the requisite ground that as a resident of University of Georgia. He holds personal jurisdiction. And, un- Laurens County, venue could not an A.B. from Emory and an fortunately, the strict application properly be had over him in LL.B. from the University of of Georgia's constitutional venue Dodge County, the forum of the Virginia where he served as rules has seriously undermined principal suit. notes editor for the Virginia the effectiveness of the CPA The supreme court upheld the Law Review. In 1973-74 he was rules allowing impleader and third-party defendant's venue a Fellow in Law and the counterclaims. Given the scarci- objections. Although recogniz- Humanities at Harvard ty of judicial resources and the ing that a joint tortfeasor's right University. GEORGIA STATE BAR JOURNAL HeinOnline -- 12 Ga. St. B. J. 72 1975-1976 where both subject-matter juris- of an automobile, and Bush, a that a party by filing suit in a diction and venue are treated as guest passenger, were injured in county waives venue as to a ancillary in third-party actions.' 9 a car-train collision in DeKalb separate law suit between dif- To say, as the supreme court did County. Hogan, then a resident ferent parties in that county in Register, that the federal cases of DeKalb County, filed suit even though both actions arise there against the railroad for her from the same events and have are inapposite because the fed- 2 4 eral jurisdictional and venue injuries. At the same time, Bush, been consolidated for trial.. standards are different misses the passenger, also filed suit in Although the railroad still pre- the mark somewhat. Even in fed- DeKalb County against the de- sumably can institute an action eral practice, impleader is not fendant railroad for her injuries. in Gwinnett County against Ho- deemed to expand the court's Since both the Hogan suit and gan to seek contribution for the jurisdiction. Rather, impleader is the Bush suit arose out of the recovery against it in the Bush deemed to warrant the use of the same collision, the cases were suit, it would have been far more court's powers of ancillary juris- ordered consolidated for trial.