Appellant Wilma Jean Botts Dixon and all the appellees individually own 19 lots of what they believed was lakefront property in a subdivision on Lake Blue Ridge in Fannin County. The descriptions of the property in the deeds conveying the lots put the waterfront boundary at the 1700-foot contour line. Due to concerns about the ownership of the area below the 1700-foot contour line Lake Blue Ridge’s maximum flood level purportedly being at the 1690-foot contour line, the grantors of the lots executed a number of quitclaim deeds purporting to transfer to the individual lot owners that portion of land below the 1700-foot contour line. The language used by the grantors varied among the quitclaim deeds. Apparently unsure the quitclaim deed to her gave her title to the area below the 1700-foot contour line in front of her lakefront lot, Dixon filed a petition for equitable partition in October 2001 in which she alleged she was a co-tenant and equal owner in each of the other lots with the individual owners of the other lots; continued joint ownership was impractical; and equitable partition was the means by which the real property should be divided. She attached to her complaint copies of the grantors’ various quitclaim deeds to the individual owners. After conducting several hearings, the trial court dismissed the petition for equitable partition after finding appellant had not: 1 named indispensable parties, namely any holder of a mortgage secured by any of the lakefront lots, the owners of non-lakefront lots who have a 20-foot-wide right of lake access that lies between two of the lakefront lots, and the Tennessee Valley Authority TVA, which operates and exercises dominion over the lake; and 2 met the requirement in OCGA § 44-6-160 that the property sought to be partitioned be described. In its order of dismissal, the trial court denied Dixon’s request that she be permitted to amend her complaint to add the indispensable parties and to provide the appropriate property description. Dixon filed a timely notice of appeal from the trial court’s dismissal order.
1. Appellant Dixon contends the trial court erred when it based its dismissal of her complaint on her failure to name indispensable parties. The failure to name the proper parties is an amendable defect. Hanson v. Wilson , 257 Ga. 5 2 354 SE2d 126 1987. While the issue may be raised in a motion to dismiss filed pursuant to OCGA § 9-11-19, ” ‘ordinarily, it is error to dismiss a petition for failure to join an indispensable party.’ Cit.. Rather, the party ‘should be joined so the case can be considered on the merits.’ Cit..” Capote v. Ray , 276 Ga. 1 3 577 SE2d 755 2002. However, a complaint may be dismissed for failure to join an indispensable party when the court lacks jurisdiction of the indispensable party. Burkhead v. Trustees, Fireman’s Pension Fund of Atlanta , 133 Ga. App. 41, 43 209 SE2d 651 1974. See also Dismuke v. Stynchcombe , 237 Ga. 420 4 228 SE2d 817 1976, where this Court affirmed the dismissal of a habeas action for failure to join an indispensable party a U.S. Marshall where it would have been fruitless to join the indispensable party since by the time the defect was brought to the court’s attention, the prisoner/plaintiff had been returned to the custody of the warden of the Putnam County Correctional Institution.
