187 Ga. 360 | Ga. | 1938
Lead Opinion
It is insisted by counsel for defendants in error that the judge passed no order denying an injunction, but merely continued in force a temporary restraining order; and that such a ruling is not one reviewable by fast writ of error. There was a prayer for injunction; a restraining order was granted; a hearing had at which demurrers were ruled on and evidence sub
Eor the proposition stated in headnote 2 we refer to the Code, § 38-403. It was ruled in Anderson v. Brown, 72 Ga. 713, that in a contest between an administrator and another person, concerning certain lands, tax returns made by the intestate of the administrator, in which he returned the lands as the property of the other party, were admissible in evidence as admissions against his title. In the opinion it was said: '"The admissibility of such admissions of intestate against his own title, when offered in answer to the claims of the administrator, is too plain to need more than a statement.”
It is earnestly insisted by counsel for the plaintiffs in error that in a case of this character, in which the plaintiff seeks the aid of a court of equity, such court has a discretion to compel the plaintiff, as a condition precedent to granting him extraordinary relief, to consent that the defendant, otherwise incompetent to testify as to transactions with the deceased, be permitted to testify. The judge certified that he ruled as a matter of law that the opposite party was an incompetent witness as to transactions with the deceased, and that he had no discretion to require the plaintiff to submit to a waiver of the statutory provision prohibiting an opposite party from testifying as to transactions or conversations with a deceased party when the personal representative is the opposing party. Counsel in support of his position relies on Kirkland v. Downing, 106 Ga. 530 (32 S. E. 632). It was there ruled: “Specific performance not being a remedy which either party to a contract can demand as a matter of absolute right, it will not in any given ease be granted unless strictly equitable and just. Accordingly, specific performance of a contract to convey land upon payment of the purchase-price will not be decreed where it appears that the party seeking the aid of the court entered into a parol agreement with the defendant to the action to become answerable for the debt of another, and to pledge the land as security for the
Was the judge correct in enjoining, at the instance of A. B. Wight as administrator ,of K. P. Wight, an action at law, a bailtrover suit, pending in the city court of Albany? The plaintiff in the trover suit was L. R. Ferrell; the defendant W. B. Wight. •The administrator would not be bound by any judgment rendered in the trover suit. It was held in Stone v. King-Hodgson Co., 140 Ga. 487, 491 (79 S. E. 122), that the general rule is that an action at law will not be enjoined at the instance of one not a party thereto, particularly where the judgment in the action will not preclude the rights of such person. Both plaintiff and defendant in the trover suit are residents of this State, and residents of the county where the petition for injunction was filed. It is not alleged that either is insolvent, or that the property which is the subject-matter of the suit at law has a special or peculiar value above any market value that can be placed upon it in accordance with strict legal rules. No fact is alleged to show that if Eerrell recovers the property, the administrator has not a complete and adequate remedy at law by suing him for the same or its value. It is declared in the Code, § 55-103, that "Equity will not enjoin the proceedings and process of a court of law, unless there be some intervening equity or other proper defense of which the party, without fault on his part, can not avail himself at law.” It is argued in the brief of counsel for the defendants in error that the injunction was properly granted, to avoid a multiplicity of suits; but we have been cited to no case and know of no instance where the doctrine of multiplicity of suits has been applied to a proceeding of this character. We have here no "one common right to be established by or against several,” or where “one is asserting the right against many,” or “many against one.” See Code, § 37-1007. To sustain the grant of an injunction against the pending suit at law on the ground of preventing a multiplicity of suits would be to disregard the provisions of our Code hereinbefore quoted (§ 55-103)
Was it error to overrule the demurrers filed by the plaintiffs in error? The petition not only sought injunction, but it alleged that the intestate of the plaintiff owned the certificate of stock; that there were due him dividends declared on said certificate, and
The first special ground of demurrer is “to said petition as a whole,” and defendants “say that there is a misjoinder of causes of action and a misjoinder of parties defendant.” Misjoinder, if it exists, can not be taken advantage of except by special demurrer. Neil v. Dow Law Bank, 138 Ga. 158 (74 S. E. 1027); Wilkinson v. Smith, 179 Ga. 507 (176 S. E. 373); Butler v. McClure, 177 Ga. 552 (170 S. E. 678). As was said in Dannelly v. Cuthbert Oil Co., 131 Ga. 694 (63 S. E. 257), “If there is a defect in a petition on account of misjoinder of causes of action, such defect is not reached by a demurrer which does not point out the same.” To be effective as a special demurrer, we think that it should at least have indicated wherein there was a misjoinder of causes of action and of parties defendant. Merely to demur because “there is a misjoinder of causes of action and of parties defendant” does not meet the requirement.
' The second special ground is to paragraph 3 of the petition. It protests that there is not attached to the petition a copy of the certificate No. 1 for fifty shares of stock in Eerrell-Wight Co. Inc., nor is it shown when said stock was issued, or to whom, or by whom,
Judgment reversed vn part and affirmed in part.
Dissenting Opinion
who dissents from the ruling in the fourth division of the decision, and from the reversal.