35 Ga. App. 178 | Ga. Ct. App. | 1926
In the brief of plaintiff in error, after the statement that “there is only one "question to be determined by the court in this case,” we find the following: “The question to be determined is, does the dismissal of the plaintiff’s petition and putting it out of court in [end?] the suit, or can the defendant proceed with the cross-action after putting his adversary, together with his petition, out of court?” This question seems absolutely settled adversely to the contention of the plaintiff in error by a number of decisions of the Supreme Court. In Ray v. Home & Foreign Investment Co., 106 Ga. 496 (4) (32 S. E. 605), Mr. Justice Cobb said: “The answer in the nature of a cross-bill containing matter germane to that set up in the original petition, the dismissal of the plaintiff’s petition did not carry such an answer with it. . . That portion of the answer which was in the nature of a cross-bill and prayed for affirmative relief against the plaintiff remained in court in order that the issues raised therein might be determined. . . Nor was it any ground for the dismissal of such an answer that the relief prayed for was not of an equitable nature. It has long been the law that where a court of equity obtains jurisdiction for one purpose, it will retain it until complete justice has been done to all parties. Civil Code, § 3925; Mays v. Shivers, 7 Ga. 238; Martin v. Tidwell, 36 Ga. 332. But without regard to this rule of law, under the practice prevailing in this State since the passage of the uniform procedure act of 1887 the superior courts have full power in all cases to grant complete relief to all suitors, applying in aid thereof either legal or equitable remedies, or both.” In McCall v. Fry, 120 Ga. 663 (48 S. E. 201), Justice Cobb said: “The purpose of the uniform procedure act of 1887 was to vest in the superior courts the authority to settle in one suit the controversy between the parties, without reference to the question whether the plaintiff’s cause was legal or equitable, or whether the defendant’s defense was one which a court of law would recognize or one which, under the old procedure, would have required the interposition of a court of equity in order to give effect to equitable rights or to enforce equitable remedies,
The headnote in Lacher v. Manley, 139 Ga. 802 (78 S. E. 188) is as follows: “Prior to the uniform act of 1887 (Civil Code, §§ 5538, 5514) the involuntary dismissal of an equitable petition for want of equity carried with it the defendant’s cross-bill which only prayed for legal relief (Johnamsen v. Tarver, 74 Ga. 402); but if the cross-bill alleged facts germane to the plaintiff’s petition, entitling the defendant to independent and distinct equitable relief, the dismissal of the petition did not interfere with the defendant’s right to a hearing and trial on the matters set up in the cross-petition. Ryan v. Fulghum, 96 Ga. 234 (22 S. E. 940). Since the enactment of 1887, which provides that in suits in the superior court founded on a legal or equitable cause of action, for a legal or equitable remedy or both, relief of an equitable or legal nature may be had in the same action, the dismissal of the plaintiff’s petition on demurrer as being without equity will not have the effect of dismissing a cross-bill of the defendant, alleging additional matters germane to the original petition, and praying affirmative relief, although the relief prayed is not equitable in character and is cognizable in a court of law.” In the opinion in that case Presiding Justice Evans said: “Since that enactment equitable and legal relief may be given in the same action in the superior courts; and there is now no reason for giving effect to the old equity rule that a cross-bill will not be retained after the original bill is dismissed, unless it prays affirmative equitable relief. By
The “dismissal of the plaintiffs petition and putting it. out of court” ends the case so far as his obtaining a judgment is concerned, but it does not prevent the defendant from proceeding to judgment with his cross-bill.
Judgment affirmed.