184 Ga. 461 | Ga. | 1937
A petition was filed in the superior court, claiming damages on account of a personal tort. It was alleged that the defendant is a non-resident but owns described property-in the county, that the plaintiff is financially unable to give the bond required by the attachment statutes, and that it is necessary that she have the aid of equity in the nature of an equitable attachment in order to obtain full, adequate, and complete relief. The petition prayed that the court order the sheriff to seize the property by a levy, as in the case of an attachment; that the plaintiff have a judgment against the defendant and against the prop
While it is true, as a general rule, that the courts of this State have no extra-territorial jurisdiction either at law or in equity over citizens of foreign States, so as to conclude them by a judgment in personam, and such a judgment is void unless the defendant has expressly or impliedly waived such jurisdiction (Gordy v. Levison, 157 Ga. 670, 122 S. E. 234; McKnight v. Wilson, 158 Ga. 153, 161, 122 S. E. 702), yet it is also true that neither the Federal constitution, nor the constitution of the State, nor the rules of comity between the States, limit the sovereignty of a State so as to preclude it from conferring authority on its courts to seize the property of a non-resident, located within its jurisdiction, and apply such property to the payment of his debts by a judgment or decree in rem. Edwards Mfg. Co. v. Hood, 167 Ga. 144 (3) (145 S. E. 87); Hood v. Hood, 130 Ga. 610, 612 (61 S. E. 471, 19 L. R. A. (N. S.) 193, 14 Ann. Cas. 359); Forrester v. Forrester, 155 Ga. 722 (2), 727 (118 S. E. 373, 29 A. L. R. 1363); Dearing v. Bank of Charleston, 5 Ga. 497, 513 (48 Am. D. 300); Adams v. Lamar, 8 Ga. 83, 90; Molyneux v. Seymour, 30 Ga. 440 (76 Am. D. 662); Pennoyer v. Neff, 95 U. S. 714, 723 (24 L. ed. 565); Arndt v. Griggs, 134 U. S. 316 (10 Sup. Ct. 557, 33 L. ed. 918). Since it is the State, and not the courts created by the State, that is vested with such inherent power, the question is not what inherent authority the State has, but what .authority it has conferred upon its courts. “It may be stated, as an incontrovertible legal proposition, that every power exercised by any court must be found in and derived from the law of the land, and also be exercised in the mode and manner that the law prescribes.” Gray v. McNeal, 12 Ga. 424 (2). Accordingly, in
Since the allegations and prayers of the petition sound in equity, it would be unnecessary to consider the validity of the proceeding as one at law, save for the settled rule, under the uniform-procedure act of 1887 (Code, § 37-901), permitting both legal and equitable rights and remedies to be adjusted in a single superior-court suit, with the result that a petition seeking ordinary relief in equity is not subject to general demurrer on the ground only that the plaintiff has a complete and adequate remedy at law. Sullivan v. Ginsberg, 180 Ga. 840, 847 (181 S. E. 163); DeLacy v. Hurst, 83 Ga. 223 (4-6) (9 S. E. 1052). If a petition sounding in equity sets forth a cause of action at law, it will not be dismissed for a lack of equity. If the suit is good as one at law, it is immaterial how it is labeled. But “the superior court has no more power or jurisdiction by the combination of courts of law and equity than those two courts had before” the uniform-procedure act. Broomhead v. Grant, 83 Ga. 451 (10 S. E. 116). Where a plaintiff alleges and proves such facts as entitle him to equitable relief, the court will enforce his equitable rights; but where, although he asks equitable relief, yet he alleges and proves only such
The recent act approved March 30, 1937 (Ga. L. 1937, p. 732), which in effect authorizes judgments in personam against nonresidents who use the highways of this State with their automobiles and injure persons while engaged in such operation, and which provides a method for personal service of summons on such users of the highways by service on the Secretary of State as their attorney in fact, and otherwise as stated in the act, is in no wise pertinent to this case or any question here involved. The only statutory authority vested in the courts of law of this State to seize and subject the property of a non-resident debtor to a judgment in rem is contained in the attachment law. The Code, § 8-111, requires the plaintiff in attachment to give a specified bond. This is jurisdictional, and its absence renders the proceeding fatally defective. English v. Reed, 97 Ga. 477 (25 S. E. 325); Rogers v. Birdsall Co., 72 Ga. 133. The instant case, therefore, considered as one at law under express attachment statutes, wholly fails; and as a proceeding at law without a bond against the property of the defendant it must fail, unless there exists some legal right under the principles of common law of present force in this State, which would authorize a legal procedure in rem without a bond.
The common and statute law of England, of force in this State on May 14, 1776, remains of force, so far as it is not incompatible with the Federal or the State constitution or has not been modified by statute. Code, § 2-8503; Act 1784, Cobb 721, Prince’s Dig. 570; Alexander v. Dean, 157 Ga. 280, 283 (121 S. E. 238); Harris v. Powers, 129 Ga. 74 (2) (58 S. E. 1038, 12 Ann. Cas. 475); Tucker v. Adams, 14 Ga. 548, 569, 570; Turner v. Thompson, 58 Ga. 268, 271 (24 Am. R. 497). At common law, what right of judicial seizure existed to subject property to a debt or liability? The writ of attachment, as we know it, was “unknown to the com
We turn then to the question as to what equity jurisdiction, if any, the courts of this State have in an ordinary action on a contract or in tort to seize and sell the property of a non-resident, under the statutes of this State governing equity procedure or under the rules of the English high court of chancery so far as of force. Does the mere presence of property belonging to a nonresident, within the territorial power of the court, give to a court of equity the right to intervene, irrespective of the non-existence of any other principle that confers equity jurisdiction? The Code declares: “Generally, equity jurisdiction embraces the same matters of jurisdiction and modes of remedy as were allowed and practiced in England.” §■ 37-124. Most of the specific grounds of such jurisdiction, as recognized and established by the English high court of chancery, are codified in title 37 of the Code. In the practice of that court, one of the oldest, most fundamental maxims was that equity acts in personam upon defendants, and not in rem. Bispham’s Principles of Equity (9th ed.), 78, § 47. The mere fact that property lay within the court’s territorial power did not constitute or create an equitable ground such as would confer jurisdiction upon a court of chancery to administer it. In England as well as in most of the States, the rule that equity acts upon the person of the defendant is held to prevail, in the absence of statutory modification; so that it remains the general rule that jurisdiction in rem or quasi in rem, in equity, just as at law, is the creature of statutes, which are to be strictly construed. In the absence of such statutes, the general rule prevails that equitable “ jurisdiction is not to be assumed and exercised [merely] upon the . . ground that the subject-matter of the suit is within the power of the court, or that the party is a non-resident.” 1 Pomeroy’s Equity Jurisprudence (4th ed.), §§ 134, 135, 170, 171, 428, 429; 4 Id. §§ 1316, 1318, 1433-1439; 6 C. J. 93, § 130; 15 C. J. 1391; 21 C. J. 149-152, 194, 195; 20 E. C. L. 565, § 353; and citations in those texts. Our own statutes create no general ground of equity jurisdiction, which empowers a court of equity
Having thus arrived at the conclusion that the mere fact that the property of a non-resident defendant may be located in this State does not authorize a court of law to seize and administer it, save by following the statutory rules governing attachments, and ■having reached the further conclusion that the mere presence in this State of property belonging to a non-resident does not in and of itself constitute an equitable principle which will authorize a court of equity to seize and administer it to satisfy the ordinary claim of a creditor ex contractu or ex delicto, and since it is conceded that no attempt has been made to comply with the attachment statutes, we come now to consider whether, under the Code and our decisions, there be any other facts set forth in the petition, such as would authorize the invoking of equitable principles and give jurisdiction to a court of equity. In the first place, does a right to proceed in equity exist by virtue of the fact that for some good and legal reason the remedy established by law is unavailable or inadequate ? If such be the case, this in and of itself would constitute a ground for equitable intervention. Code, §§ 37-102, 37-120. The petition .alleges a personal tort consisting of a slanderous verbal assault upon the plaintiff by an alleged agent
It is well settled that if the averments of fact in a petition do not make a case in equity, mere prayers for equitable relief, or prayers not appropriate to the facts pleaded, will not do so. A mere prayer for general relief and the invoking of the powers of a court of equity to grant the same do not create an equity case. Mulherin v. Neely, 165 Ga. 113, 115 (139 S. E. 820); Burress v. Montgomery, 148 Ga. 548 (5) (97 S. E. 538). Even where equitable principles are actually involved, the statement of a bare conclusion that an injury is apprehended, without facts to show a good reason therefor, constitutes no ground for' equitable relief. Bailey v. Ross, 68 Ga. 735 (b). Stripped of unsupported conclusions and prayers for the relief in personam, which is manifestly ungrantable in the absence of personal service, the petition seeks a summary seizure of and a judgment in rem against the real estate upon only two alleged grounds additional to that of non-residence and the situs of the property within the territorial control of the court: (1) because the plaintiff is financially unable to give the bond required by the attachment statutes; and (2) because it is asserted that the remedy at law by an attachment would not be adequate or as full and complete as the remedy in
Since financial inability to give the bond required by the attachment statutes does not afford ground for equitable relief, we now look to see if the petition sets forth any other fact or facts which would authorize the conclusion pleaded that the remedy prescribed by law is in this particular case inadequate. Our Code, § 37-120, provides: “Equity will not take cognizance of a plain' legal right where an adequate and complete remedy is provided at law; but a mere privilege to a party to sue at law, or the existence of a common-law remedy not as complete or effectual as the equitable relief,, shall not deprive equity of jurisdiction.” It will readily be seen that if the law itself provides a full and adequate remedy, ordinarily that is the end of the matter, and equity will not interfere. 1 Pomeroy’s Equity Jurisprudence (4th ed.), §§ 131-133; 1 Story’s Equity Jurisprudence (14th ed.), § 117; Bispham’s Principles of Equity (9th ed.), 28, 59; 21 C. J. 33-38, and cit. In this case it seems patent that the attachment law, if resorted to and complied with, would afford full relief and ample protection to the plaintiff. Even as against third parties acting in good faith and without notice, the levy of an attachment on real estate, where entry is made on the attachment docket as
No receiver is asked in this case; and while it is true that a receiver can be appointed under a general prayer for equitable relief, provided the fads alleged authorize it (Broderick v. Reid, 164 Ga. 474 (2), 483, 139 S. E. 18; Ætna Life Ins. Co. v. Dorman, 179 Ga. 890, 177 S. E. 703), no fad is here set forth which would permit the appointment of a receiver. But even if the allegations and prayers were thus sufficient, and even if, as suggested, a receiver might impound the rents and profits of the property sought to be seized, so also would the legal process of garnishment accomplish the same purpose just as effectually. The Code, § 8-501, provides that, ’“in all cases where attachment may issue, it shall be the duty of the magistrate, or other officer issuing the same, at the request of the plaintiff, his agent, or attorney at law, to issue summons of garnishment,” and “it shall be
We now consider other decisions by this court, supporting the view here taken, but by a divided bench. In Tennessee Fertilizer Co. v. Hand, 147 Ga. 588 (95 S. E. 81), four of the Justices concurring, it was held that “jurisdiction in a court of equity must first exist before it can exercise equitable powers;” that “jurisdiction must precede rather than follow receivership, injunction, etc.;” and that “where a minority stockholder in a domestic corporation brought suit on behalf of himself and others similarly situated, against a foreign corporation, alleging that it was the holder of a majority of the stock of the domestic corporation, and praying for a recovery of damages in favor of the domestic corporation on account of alleged fraudulent acts on the part of the foreign corporation in securing possession of the plant and assets of the domestic corporation, to the exclusion of the stockholders, under a lease of the plant and its assets for a period of five years on terms which were alleged to be enormously advantageous -to the foreign corporation, and at a rental which was very small, and which resulted in enormous profits to the latter corporation, and where the prayer was for injunction, receiver, and the recovery as
As to the absence of equity jurisdiction in other cases where statutory remedies are full and adequate, see Field v. Jones, 10 Ga. 229, 234, 235; Williams v. Kennedy, 134 Ga. 339, 341 (67 S. E. 821), and cit.; Smith v. Murphey, 140 Ga. 80 (78 S. E. 423); Daniel v. Joseph Rosenheim Shoe Co., 152 Ga. 278 (109 S. E. 504); Cone v. Eubanks, 167 Ga. 384 (145 S. E. 652); American Surety Co. v. Miller, 173 Ga. 82, 83 (159 S. E. 692); Douglas v. Jenkins, 146 Ga. 341, 343 (91 S. E. 49, Ann. Cas. 1918C, 322); Williams v. Smith, 148 Ga. 615 (97 S. E. 670); Burress
We turn now to a consideration of cases which might at first impression appear to support the plaintiff’s contentions. In Phillips v. Wesson, 16 Ga. 137, there was a creditors’ bill by several plaintiffs, “to subject assets which can not be reached at law [by garnishment], owing to the peculiar circumstances of the case,” as stated. Two grounds of equity jurisdiction, as now codified, appeared: the avoidance of a multiplicity of suits, and a creditors’ bill (Code, §§ 37-1501 [2], 37-301, 37-407, 37-408); and it was held that “a court of equity will be the most appropriate forum for distributing the fund amongst the claimants.” In Pope v. Solomons, 36 Ga. 541, this court held that, “although a party may have a common-law remedy, yet, if it is not as complete and effectual as it would be in a court of equity, the latter court, having first taken jurisdiction of the cause, will retain it.” It was “’insisted that the complainant . .. had an adequate remedy at law by garnishment.” The bill was brought by one creditor against several defendants, and alleged that one, the debtor of the plaintiff, had absconded, leaving no property in the State; that his copartner, also a defendant, was insolvent; and that the absconding debtor had sold his interest in a stock of goods to a third person, in consideration of an agreement by the latter to pay a usurious debt to another creditor of the debtor, and charge the same against the amount due by the third person to the debtor as purchase-price. The bill prayed for discovery against the partner of the absconding debtor, and against the purchaser and the other creditor, and for an injunction against the purchaser’s payment to the other creditor; and sought to reach the amount of the effects in the hands of the purchaser, after an accounting with regard to the usurious debt, so as to allow only lawful interest. Injunction was issued, and process served on all parties except the absconding insolvent debtor. From these facts it is obvious that the equitable ground of avoiding a multiplicity of suits was involved, with an additional averment as to the debtor’s insolvency; and that the remedy of garnishment would not have been as complete and effectual as the recourse to equity to obtain full relief against all of the defendants. Bowling v. Amis, 58 Ga. 400, is also clearly distinguishable by the fact that the choses in action of
In Ernest v. Merritt, 107 Ga. 61, 64 (32 S. E. 898), “an equitable petition [was] brought by creditors of a husband against Mm and his wife, alleging a conspiracy by them to defeat his creditors by fraudulently placing in her the title to property belonging to him and justly subject to the payment of his debts, setting up divers and complicated transactions, including the making of various deeds by the husband to the wife, . . and praying that portions of the property described be decreed subject to the petitioners’ claims.” It was held that the petition “was not demurrable,” and that “in such a case the remedy at law would not be adequate and complete.” The adequacy of the legal remedy was not discussed other than by a mere reference to Conley v. Buck, 100 Ga. 187 (28 S. E. 97), as authority. In the Gonley case many defendants were involved in the alleged fraudulent conspiracy with the debtor to “hide” and “cover up” his property in the names of the conspirators. The petition prayed not only for judgment subjecting all the property to the petitioner’s execution, but for “cancellation of the various conveyances.” This alone was a ground of equitable jurisdiction in cases of fraud. Code, § 37-709. There were also many defendants, with the consequent additional ground to avoid a multiplicity of suits. In the Ernest case, the petition was in effect a creditors’ bill by several plaintiffs, avoiding a multiplicity of suits and involving complicated transactions. Code, §§ 37-701, 37-407, 37-408. The avoidance of multiplicity of suits as a ground also appeared in Kruger v. Walker, 111 Ga. 383 (36 S. E. 794). In the unanimous decision in Coleman v. Law, 170 Ga. 906, 911 (154 S. E. 445, 74 A. L. R. 864), this court sustained the invoking of equitable jurisdiction on the ground of a trust. Code, §§ 108-106, 108-117, Bispham’s Principles of Equity (9th ed.), § 20. That decision, however, cited with approval four of the cases which we have dis
Finally, we deal with the eases on which the plaintiff especially relies. It would seem that of these all but one are distinguishable and do not conflict with the rule here arrived at. First, there is a group of divorce and alimony decisions which hold that, while a judgment in personam for alimony can not be lawfully rendered in a divorce suit against a non-resident husband, a judgment merely in rem against specific property within the territorial jurisdiction of the court is proper. Hood v. Hood, Forrester v. Forrester, supra; Donalson v. Bridges, 162 Ga. 502 (134 S. E. 302); Jackson v. Jackson, 164 Ga. 115 (137 S. E. 827). Under our constitution and statutes, vesting in the superior courts jurisdiction over divorce and alimony cases, they stand upon a peculiar footing. As a necessary incident to the power to grant a divorce in a suit for divorce and alimony, the court is invested with the additional power to make provision as to alimony. McGee v. McGee, 10 Ga. 477, 483. The Code, §§ 30-105, 81-204 to 81-207, inclusive, provides for service on non-residents in divorce cases, “as in causes in equity,” by publication. Under §§ 30-209 and 30-111, codifying the act of 1806 (Cobb, 224, 225; Acts 1866, pp. 146, 147), which was embodied in all subsequent Codes, “in all suits for divorce, the party applying shall render a schedule, on oath, of the property owned and possessed by the parties, . . distinguishing the separate estate of the wife, if there be any, which shall be filed with the petition, or pending the suit, under the order of the court;” and the jury rendering the final verdict in a divorce suit may provide permanent alimony for the wife,
Therefore it seems clear, even though the ruling in the Hood case, supra, that although a personal judgment for alimony was invalid a judgment in rem would have been proper, was obiter, that since the actual judgment was only one in personam, the ruling was correct. This peculiar status of decrees or orders in rem for alimony in pending suits for divorce is the main distinguishing point between such cases and the instant one. There are other differences. In the Forrester case, supra, it was said also that a demand for alimony can not be enforced by attachment and garnishment, and therefore the basis of the decision seems to have been that since the remedy by attachment was not available, “at •law this plaintiff is remediless.” In Donalson v. Bridges, supra, it not only appeared that the subject-matter of the suit was permanent alimony, but it was also sought to cancel a deed fraudulently procured from the husband while non compos mentis. TJnder this ground of equitable relief against several defendants, equity jurisdiction was also manifest. The Jachson case, supra, was also a suit, not only for alimony and a judgment in rem, but for the setting aside of. a conveyance by the husband, and with two additional parties defendant. Two Justices dissenting on the ground that the relief as sought against the husband required personal service on him, the majority held that under the Forrester decision the petition was not subject to demurrer.
Other cases, where equitable jurisdiction was plainly involved, are also readily distinguishable. In Edwards Mfg. Co. v. Hood, 167 Ga. 144 (2) (supra), two Justices basing their dissent on Tennessee Fertilizer Co. v. Hand, 147 Ga. 588 (supra), the majority held that, if a non-resident “has property in the State that is subject to seizure for his obligations to a resident plaintiff, the courts will, in a proper case and upon proper pleadings, seize the property and administer it for the benefit of the plaintiff.” (Italics ours.) That decision, however, does not run counter to the principles as heretofore stated and decided by this court in the cases discussed, where an attachment would have given an adequate and complete remedy at law; but merely holds in effect that “in a proper case” for equitable interference a non-residenffs property can be seized and administered. Such a case there
We turn now to the ease of Pendley v. Tumlin, 181 Ga. 808 (184 S. E. 283), on which the plaintiff especially relies. Under similar averments and prayers, that decision does not appear distinguishable from the instant case. One Justice dissenting, the majority holding, based upon the cases of Forrester v. Forrester and Coral Gables Corporation v. Hamilton, supra, supports the plaintiff’s contentions. It was there held that an attachment against a non-resident does not afford an adequate remedy, and that, even though the liability claimed was for a personal tort, equity had jurisdiction to seize the defendant’s property as in case of attachment. In the Pendley case reference was made to the rule that a receiver may be appointed in a proper case under a general prayer, even though not specifically prayed. This idea has already been discussed. Since the Pendley decision was not unanimous, the prior unanimous decisions, with which we have dealt, should control. Upon a review of the eases discussed on the questions presented, these earlier decisions are now held to be controlling, nothwithstanding anything that may have been subsequently held to the contrary. Accordingly, the decision in Pendley v. Tumlin, supra, will not be followed. As stated above, all other previous decisions are distinguished by their facts from the case under consideration. We deem the questions here involved to be of great importance. The establishment of a rule that averments of facts, merely setting up non-residence of a defendant and financial inability of a plaintiff to give an attachment bond, without showing any other such fact' as would authorize the invoking of equitable principles, are sufficient to authorize a court of equity to seize and administer a non-resident’s property, would result in a practical nullification of our attachment and garnishment laws requiring bonds for the protection of alleged debtors, and in the abrogation of the well-established rule that equity will not take jurisdiction where there is an adequate remedy at law. We have therefore reached the conclusion that, under the rules as expressed in the syllabus, the judge did not err in sustaining the plea to the jurisdiction and the motion to dismiss the action.