16 S.E.2d 435 | Ga. | 1941
The equity features which this case originally contained having been abandoned or eliminated before it came to judgment in the trial court, and no ruling upon any question involving equity being under review, the Court of Appeals and not this court has jurisdiction.
The lease contract between the parties had been attached as part of plaintiff's petition, and among its terms was a provision that in the event of cancellation of the lease by the lessor, within the first year from its date, the lessees would be entitled to a certain amount as liquidated damages, and if canceled in the second year the amount of such damages would be $6000. It is thus seen that the effect of the plaintiff's amendment was to treat the lease as having been breached or canceled by the lessor, and not, as originally, to claim possession under its terms. It is also seen, as represents the personal property not involved in the lease, which it was claimed had been converted by the defendants to their use and possession, an accounting was no longer sought, but a judgment was sought for its stated value. The case as thus amended went to trial. Proof was offered by the plaintiff, consistent with its claim for damages based on a breach of the lease and a wrongful eviction. The exception is to a judgment of nonsuit. *643
In such a situation this court is without jurisdiction to review the judgment of the trial court. While the allegations of the original petition and its prayers, which had to do with equity, were never formally and in terms stricken, yet it seems entirely clear that the action was converted to a plain simple suit for damages. No equitable relief in the case would have been appropriate, and all equitable features had in effect been removed from it. We have uniformly held that for the purpose of testing jurisdiction such a case must be appraised in the character it bore at the time the issues resulting in the judgment complained of are submitted. In Martin v. Deaton,
In the brief of counsel for the plaintiff the statement is made that "No appeal was taken from this interlocutory order, for the reason that by the time the interlocutory decree was passed the continued trespass and operation of said hotel by defendants had removed the practical value to plaintiff of any subsequent order restraining the trespass and restoring possession to plaintiff, and plaintiff elected to continue said case for the purpose of recovering damages for the trespass." It is contended, however, in response to a rule issued in reference to the transfer of the case, that this statement was inadvertently made, and that the case actually did remain an equity case. This claim is made chiefly on the proposition that recovery could be allowed in equity for damages occurring *644 to the plaintiff after the filing of suit; whereas at law the recovery would be limited to damages occurring before the filing of suit. This contention fails, however, for the reason that no such damages were claimed. Therefore, under the Code, § 24-4527, and the authorities cited, the case is
Transferred to the Court of Appeals. All the Justicesconcur.