139 Ga. 802 | Ga. | 1913
W. • D. Manley brought suit against Ludwig Lacher, alleging that the defendant was in the occupancy of a farm belonging to the plaintiff, by virtue of a written contract which was attached to the petition. The plaintiff alleged that the contract had been breached in divers and sundry particulars, and prayed for the appointment of a receiver for so much of the farm as was actually occupied by the defendant, and for an injunction against the defendant’s interfering with the plaintiff in the management and control of so much of the farm as was not occupied
The question made is, what is the effect of an involuntary dismissal of the petition praying equitable relief, upon the cross-petition of the defendant praying affirmative relief not of an equitable nature? We will consider the question, first, from the viewpoint of the English chancery practice; and secondly, as such practice has been modified by our practice and procedure statutes. A cross-bill implies a bill by a defendant against the plaintiff in the same suit, or against other defendants in the same suit, or both, touching the matters in question in the original suit, and is auxiliary to or dependent upon the original suit. 2 Dan. Ch. Pr. 1548. Because of this dependency was evolved the general rule that an involuntary dismissal of the original bill carried with it the cross-bill. 5 Enc. PI. & Pr. 662; Daws v. City of Chicago, 11 Wall. 108 (20 L. ed. 65); Dill v. Shahan, 25. Ala. 703. The statement that the cross-bill shares the fate of the original bill when the latter is dismissed is too comprehensive and general to be strictly accurate. In Story’s Eq. PI. § 399, note, it is said: “A distinction should be drawn between cross-bills which seek
In those jurisdictions where there is a separation of forums for the administration of law and equity the rule is firmly established, that, if the original bill is dismissed for want of equity, a cross-bill, praying affirmative relief which may be obtained in a court of law, will not be retained for giving purely legal relief. The reason is manifest. Courts of equity will not grant relief where the remedy at law is adequate. When the original bill has been adjudicated to be without equity, and the cross-bill standing alone presents no grounds for equitable relief, it must fall because of an adequate legal remedy. This is what was decided in Johnamsen v. Tarver, 74 Ga. 402. In that case the complainant filed a petition to cancel a contract of sale of a stock of merchandise, containing a stipulation for monthly payments; praying also for an accounting and the remedy of injunction. The defendant by cross-bill prayed judgment for the installments which were in arrears. When the original suit was dismissed at the instance of the defendant as being without equity, the cross-bill of the defendant, which only sought a judgment on a money demand, was held to be without equity—the defendant having an adequate remedy at law. It is to be remembered that this decision was rendered prior to the uniform procedure act of 1887, which permits both legal and equitable principles to be applied in the same action and administered in the same court, having jurisdiction over cases in law and in equity.
Judgment reversed.