156 Ga. 398 | Ga. | 1923
(After stating the foregoing facts.) We are of the opinion that this case falls 'within the ruling in Everett v. Tabor, 127 Ga. 103 (56 S. E. 123, 119 Am. St. R. 324). It was there held: “A defendant in an equitable cause, wherein specific equitable relief is prayed because of his alleged fraud, can not by the- consummation of the fraud pending suit, whereby the particular relief prayed can not be decreed, deprive the court of its jurisdiction of the case; but the court will give such other relief as may be appropriate to the changed status.” In delivering the opinion of the court, which was by a full bench of six Justices, Mr. Justice Evans, said: “ The original petition was for relief against the enforcement of a judgment which had been regularly rendered against the losing party, who had a meritorious defense but was prevented by the fraud of the other party from entering an appeal. If the allegations therein were true, the petitioner was entitled to the relief prayed. Everett v. Tabor, [119 Ga. 128, 46 S. E. 72], supra. So the real question for determination now is, did the amendment introduce a different cause of action from that alleged in the original petition? The amendment set up facts transpiring after the filing of the suit, and was in the nature of a supplemental bill. It appears from the amendment that the plaintiff can not ■now be afforded the relief of injunction, since the executions have been paid. The amendment discloses that payment of the execu-’ tions was not made voluntarily, but in order to release the plaintiff’s property from seizure under the executions, and to prevent its sale by the constable. Civil Code, § 3723; First National Bank v. Americus, 68 Ga. 119, 123 [45 Am. R. 476]. UndeT the English equity practice, matters transpiring after the filing of a bill in equity were available by way of a supplemental bill; under our procedure, no supplemental petition need be filed, but all such matters may be set up by way of amendment. Civil Code, § 4969. It is well settled that if, upon the final hearing of a petition for injunction, it appears that the equitable relief prayed for can not be granted, because of a change in the status, brought about since the filing of the action, the plaintiff may be awarded damages in lieu of the equitable relief sought. Under our system of pleading, which allows a joinder of equitable and legal causes in the same action, a plaintiff may abandon his equitable cause and insist on his purely legal remedy. In such a case, where he elects to recover
In the instant case the plaintiff in his original petition alleged that he had rented the farm described in the petition from one of the defendants for the year 1930, and that the other defendant had threatened to move into the dwelling-house occupied by the plaintiff under the rent contract, and to break the locks on the doors of the residence for that purpose, if necessary. He also moved some of his goods into the outbuildings on the premises, which it was alleged in the petition the plaintiff was entitled to the possession and use of. He prayed for injunction against Ihis alleged ouster,
Judgment reversed.