Comstock v. Tarbush

37 S.E.2d 148 | Ga. | 1946

The action in this case is one at law, and not in equity; and not being one at law over which the Supreme Court has jurisdiction, the case is transferred to the Court of Appeals.

No. 15403. FEBRUARY 19, 1946. Comstock brought a trover action against Tarbush for the recovery of certain described personal property, and alleged: That he purchased from the defendant a Ford tractor and a Utility trailer, paying $1000 down, as part of the purchase-price, and was to pay the balance as soon as the low OPA ceiling price could be established. The defendant refused to go with him to the offices of the OPA to determine the low-ceiling price, but he has ascertained the same to be $1196.84 for the tractor and $1022.40 for the trailer. The balance due has been tendered to the defendant and its acceptance refused. The reasonable hire of the property is $200 per month from December 1, 1944. The prayer was for process. After a general demurrer, the plaintiff amended his petition by alleging that the tractor and trailer, following their sale and delivery to him, remained in his custody for approximately a week, and were then returned to the defendant to have the extra equipment checked for the determination of ceiling prices. The defendant has since refused to return them to him. The defendant has no assets, except the balance due him on this property, and a money judgment against him can not be enforced. Unless a court of equity intervenes to aid the trover proceeding, the plaintiff will lose the down payment. A bond has been given by the defendant for the property sought to be recovered. Upon information, it was alleged that the tractor and trailer have been disposed of. The only prayer was for the allowance of the amendment. The demurrer was renewed to the petition as amended and was sustained. The plaintiff excepted to the order sustaining the demurrer and dismissing the case. The defendant in error has raised the question of the jurisdiction of this court, and insists that the case is of that class over which the Court of Appeals has jurisdiction. The original petition stated a cause strictly at law with a prayer only for process. Clearly the averments originally made and the relief prayed presented no such cause of action as would be reviewable by this court on a writ of error. Code, § 2-3005. Unless the amendment allowed changed the proceeding begun at law to one in equity, or to one both in law and equity, this court has no jurisdiction. While some of the allegations of the amendment may be appropriate for equitable relief, yet none is prayed, and such an amendment is no broader than its prayers. Central of Georgia Ry. Co. v. Bibb BrickCo., 149 Ga. 38 (99 S.E. 126). It is well settled in this State, that, in determining the question whether a case is one at law or in equity, the nature of the relief sought, rather than the form of the allegations of the complaint, is important.Taylor Lumber Co. v. Clark Lumber Co., 159 Ga. 393 (125 S.E. 844). In Copeland v. Cheney, 116 Ga. 685, 687 (43 S.E. 59), this court held that an equitable petition must not only allege facts to show that the plaintiff is entitled to relief, but his prayers must indicate the nature of that relief. The plaintiff in an equitable petition will never be granted any relief unless there is a prayer asking for the specific relief sought, or unless there is a prayer for general relief and the nature of the case is such that, under the prayer for general relief, some character of relief may be granted which is consistent with the case made by the petition and with its specific prayers. Such being the rule, the plaintiff is confined to his prayers for relief; and in order to determine whether an equitable petition sets forth a cause of action, it is only necessary to determine whether the allegations of the petition are such as to authorize the particular relief which is the subject-matter of the prayers. The amendment in the instant case, while making allegations which might be appropriate in equity, contains no prayers for any equitable relief, and consequently did not have the effect of changing the original trover action into an equitable action, or one both in law and in equity. The case is one still strictly at law, and therefore the Court of Appeals and not his Court has jurisdiction of the writ of error. Code, § 2-3000. Accordingly, the case is

Transferred to Court of Appeals. All the Justices concur.