213 Ga. 637 | Ga. | 1957
In all cases where it may appear that jurisdiction of a writ of error is in doubt, it is the duty of this court
Whether a case is one in equity within the jurisdiction of the Supreme Court, or is an action at law within the jurisdiction of the Court of Appeals, must be determined by its allegations and prayers at the time of the judgment complained of. Anagnostis v. Alexandrou, 203 Ga. 752 (48 S. E. 2d 521). “To make a case in equity, the allegations of the petition must be applicable to the equitable relief prayed.” Hollinshed v. Shadrick, 212 Ga. 624 (94 S. E. 2d 705); Bernstein v. Fagelson, 166 Ga. 281 (142 S. E. 862); Jasper School District v. Gormley, 184 Ga. 756 (193 S. E. 248); Moseley v. Alspaugh, 192 Ga. 216 (14 S. E. 2d 737); Odom v. Atlanta & West Point R. Co., 204 Ga. 328 (49 S. E. 2d 821).
“If the averments of the petition do not make a case in equity, prayers for equitable relief would not make the case one in equity.” Mulherin v. Neely, 165 Ga. 113, 115 (139 S. E. 820); Williams v. Aycock, 180 Ga. 570 (179 S. E. 770); Atlanta Finance Co. v. Fitzgerald, 189 Ga. 121 (5 S. E. 2d 242).
In the present case the sole allegation of the amendment which might be relied upon for the granting of equitable relief is the allegation that the defendant has threatened to evict the plaintiff by “intruder’s warrant.” Subsequent allegations of the petition show that this threat was withdrawn, and there was not even a threat of dispossessory proceedings existing at the time the amendment was filed.
There being no allegation in the petition that would authorize the granting of any equitable relief, the case is one at law for damages within the jurisdiction of the Court of Appeals.
Transferred to the Court of Appeals.