125 Ga. 833 | Ga. | 1906
Lead Opinion
(After stating the facts.) The granting of the injunction was resisted by demurrer to the petition and by answer. Under the facts alleged in the petition, petitioner was entitled to have the writings executed by her to the defendant, Mrs. Brown, surrendered up and canceled. Bell v. Weyman, 99 Ga. 273. The gravamen of the petition is the cancellation of a deed alleged to have been given as security for a debt, after tender of the debt with legal interest and the refusal of the creditor to accept the same; and also the cancellation of a paper termed “release,” alleged to have been procured by a fraudulent representation of its contents and without consideration. As defendant in the rent and supply-lien foreclosure suits, petitioner could only set up such equitable defense as would be germane to that which she might allege by way of counter-affidavit; she could not engraft on her statutory defense an amendment praying a cancellation of her deed to the plaintiff. Patrick v. Cobb, 122 Ga. 80. Nor is the ease made by the petition at all similar to that of Johnson v. Thrower, 117 Ga. 1009. In that case the petition was filed by one who had attorned to the defendant as landlord, to enjoin the execution of a dispossessory warrant, and no relief other than injunction was prayed. The applicant there was denied an injunction to prevent the enforcement of the dispossessory warrant, because all of the matters alleged were available as a defense to the statutory proceeding. The same may also be said of Hays v. Clay, 121 Ga. 908. In the case in hand, the petition denies the relation of landlord and tenant, and prays the cancellation of certain writings, for good and sufficient reasons alleged, and, as incidental to this relief, prays that the distress warrant and landlord’s supply lien be stayed until the final decree, when the respective rights of the parties will have been determined. The petition sets forth good cause for equitable interference by cancelling these writings; and “when the court of equity takes jurisdiction for one purpose, it holds it for all others necessary to the final settlement of all questions involved in the litigation between the parties growing out of and connected with that
But it is contended that the result of the litigation in the justice’s court concluded the plaintiff. .The record of the proceedings in the justice’s court discloses that an issue had been formed in that court between the plaintiff and the defendant by the filing of a counter-affidavit to the distress warrant, and on the hearing before the magistrate judgment was rendered against the defendant, Lou Bonds. She took an appeal to a jury in the justice’s court and was again unsuccessful. But, so far as the record discloses, no judgment was ever entered on the verdict obtained in that court. Had this been done, the judgment would be conclusive upon the parties as to all issues involved in that controversy, and the further prosecution of the liens would not be enjoined. But a verdict not followed by adjudgment will not serve as an estoppel by res adjudicata. Walden v. Walden, 124 Ga. 145. There being no estoppel by judgment, the court properly considered the enforcement of the liens as in fieri, and enjoined their further prosecution until the equitable petition was disposed of on its merits.
Judgment affirmed.
Rehearing
ON MOTION FOR REHEARING.
Note.
The absences of Justices, hereinbefore noted, were due to providential causes.
A few cases where Justice Atkinson did not preside were argued before he came upon the bench of this court.