NYLEN v. BARBARIS

GUNTER, Justice.

This is an appeal from a judgment declining to dismiss an equitable action brought below against the appellant who was not a resident of the county in which the action was brought. The trial judge granted a certificate for review.

The appellee brought an action against the appellant in the trial court to enjoin the foreclosure pursuant to a power of sale contained in a deed to secure debt. The real estate described in the security deed being foreclosed was located in DeKalb County, but it was stipulated that the defendant-appellant, the foreclosing party, was a resident of Fulton County. The Georgia Constitution (Code Ann. § 2-4903) provides that "equity cases shall be tried in the county where a defendant resides against whom substantial relief is prayed." An action to enjoin a foreclosure under a power of sale must be brought in the county where the defendant resides. See Modern Homes Const. Co. v. Burke, 219 Ga. 710 ( 135 S.E.2d 383), and Modern Homes Const. Co. v. Mack, 219 Ga. 715 ( 135 S.E.2d 386).

The trial court's refusal to dismiss the action was erroneous.

Judgment reversed. All the Justices concur.