184 Ga. 25 | Ga. | 1937
E. H. Lawman, a receiver appointed by a cliancery court of tlie State of Tennessee, filed suit on a note executed in his favor in Tennessee by the defendant, Charles Robert Jones, a resident of Georgia. The note was secured by a deed to certain described realty in Walker County. The plaintiff prayed for process; that he recover of the defendant a verdict and judgment on the note for principal, interest, and attorney’s fees; that the judgment be declared a special lien on the real estate described in the security deed; that the deed be foreclosed as an equitable mortgage and the property sold for the satisfaction of
No evidence was introduced, and the judge directed a verdict for the plaintiff for the principal, interest, and attorney’s fees sued for. The judgment or decree provided that the same was a special lien upon the lands described in the security deed, and further: “It is ordered that said security deed be foreclosed as prayed.’’ A writ of error, assigning error on the sustaining of plaintiff’s demurrer to the answer, on the exceptions pendente lite, and on the direction of a verdict for the plaintiff against defendant, was sued out to this court. In the bill of exceptions it is recited that this court “has jurisdiction in this cause, because the
The constitutional amendment proposed by the act of 1916 (Ga. L. 1916, p. 19), and ratified November 7, 1916, defining the jurisdiction of the Supreme Court, and now embodied in the Code, § 2-3005, declares that this court has jurisdiction in, among others, “all equity cases.” In Ford v. Tifton Guano Co., 144 Ga. 353 (2) (87 S. E. 274), this court held that where the legal remedy of foreclosure is adequate, a mortgage will not be foreclosed in equity. In the opinion the court said that there was no allegation that the property was insufficient to pay the mortgage debt; that the extraordinary -remedy of injunction and receiver is a harsh one; that the rule is clear that it is not available except where the ordinary remedies are ineffectual or inadequate; and that the foreclosure of a mortgage in equity should not be resorted to where the remedy of foreclosure at law furnishes complete and adequate relief. It is true that in a proper case a deed to secure a debt may be foreclosed as an equitable mortgage. Kitchens v. Molton, 172 Ga. 690 (158 S. E. 570), and cit. Properly construed, the petition in this case, while it prays that the deed be foreclosed as an equitable mortgage and the property sold to satisfy the debt, does not contain a prayer that the equity of redemption of the defendant be barred, as appears in all the cases (Bateman v. Archer, 65 Ga. 271; Pusser v. Thompson, 132 Ga. 280, 64 S. E. 75, 22 L. R. A. (N. S.) 571; Smith v. Farmers Bank, 165 Ga. 470, 141 S. E. 203; Burgess v. Ohio National Life Ins. Co., 177 Ga. 48, 52, 169 S. E. 364); and it does not seek the grant of any equitable relief, such as injunction to prevent the disposal of the property and the appointment of a receiver to take charge thereof, or other equitable relief. The petition shows no reason for seeking equitable relief against the defendant. The fact that a special lien on the land is prayed does not affect the jurisdiction. Edenfield v. Bank of Millen, 7 Ga. App. 645 (67 S. E. 896). The case presents a controversy between the payee of the note and its maker, who was also the grantor in the deed to secure debt, relative to whether the defendant is liable on the note. This case is similar to Burgess v. Ohio National Life Ins. Co., supra, which was transferred to the Court of Appeals.
The answer and the amendment thereto did not change the character of the case made by the petition, no affirmative equitable relief having been sought. See Burgess v. Ohio National Life Ins. Co., supra.
While the case under consideration was brought on the equity side of the superior court, alleged to be a foreclosure in equity of the security deed as an equitable mortgage, the petition in substance did no more than seek a money judgment upon a promissory note, and to have the judgment declared a special lien upon the land. It did not seek injunction or appointment of a receiver, or allege any other equitable ground of relief. The action being of this character, the case was not an equity case within the meaning of the above-mentioned provision of the constitution. The Supreme Court is without jurisdiction of the writ of error as an equity case. There being no other ground that would make the writ of error returnable to the Supreme Court, and the Court of Appeals having jurisdiction, the case is
Transferred to the Gourt of Appeals.