Mackall v. West

67 Ga. 278 | Ga. | 1881

Jackson, Chief Justice.

We are not prepared to say that the court below erred in sustaining the demurrer and dismissing this bill. The demurrer rested on three positions: that the bill is multifarious, that the remedy at law is adequate, and that there is no equity in the bill.

1. It seems to us multifarious. The same relief is not prayed for against all the defendants ; but it is asked that certain of them account for certain goods mortgaged by others of them, and against the mortgagors, insolvent too. The prayer is that they pay the balance of a debt secured by the mortgage after the account is. made of the- mortgaged property by those who, it is alleged, have wrongfully got possession of those goods.

The only thing which at all connects the defendants together, and makes any privity between them, is that mortgage, and relief beyond what it covers is entirely distinct from the link which chains them together.

And as respects the mortgage, or the goods covered by it, the remedy at law is complete under the alleged facts. Heard & Fulcher, two of the defendants, got it transferred to them by the complainant, by agreeing to account to him, or his assignor, for the proceeds of the goods as they sold them, and this they have wholly refused to do, but have agreed to turn over those proceeds to the Messrs. West, two other defendants, who are charged with .knowledge of the claim of complainant’s assignor. Thus they, Heard & Fulcher, are responsible- in damages to complainant for the value of the goods thus wrongfully obtained. The fraud gave them no title. They are solvent and able to. respond in damages, and live in the county of Screven, where they should be sued, and if the allegations. are proved, a court of law will make them respond. It is not in accordance with their constitutional right to be sued in their own county to force them to defend in Chatham county, because the parties to whom they are alleged to be turning over the proceeds of the goods live in Chatham. No injunction is asked to prevent them from doing so; and if asked, they would not be restrained from so turning over the goods, because they are entirely solvent, and able to respond for all the proceeds so turned over.

So the remedy against them is complete at law in their own county, and this court has ruled that in such a case equity will not move them out of it. Discovery against them, though asked, is unnecessary. It can be had as well at law as in equity. 44 Ga., 10; 58 lb., 11.

If the complainant wishes to recover from the mortgagors the remainder of their note, after exhausting the liability of Heard & Fulcher for their fraudulent use of the transfer of the mortgage, he has a clear road to the desired end through a court of law. Suit on the note will give him a judgment, not only for that part of the note secured by the mortgage, but for the whole note.

Whilst there is a general charge of fraudulent combination made against the Wests, no facts are clearly and distinctly alleged going to implicate them, and to make them responsible to complainant. The mere allegation of fraudulent combination does not amount to enough to get a decree against them, unlesslt be strengthened and rendered distinct and issuable by facts which can be traversed by plea or answer.

On the whole, it being the burden the plaintiff in error assumes to show error in the court below in the judgment he would have reversed, and therefore to show that there is equity in the bill which was dismissed by that judgment, and as there is no equity in it if the remedy at law be complete, and if distinct and separate relief be asked against the different defendants' on distinct claims and different grounds, and if the only beneficial effect to him seems fjrom the general cquntenance of the bill to be to draw defendants against whom substantial relief is prayed out of their county by connecting with them, on vague allegations, others against whom, to say the least, no specific relief could well be had from the facts alleged, we must affirm the judgment, and leave him to his remedies at law.

Cited for defendant error: Story’s Eq. Plea., 452, 443-5, 324, 571, 572, 262, 505, 271 et seq.; Code, §§3081, 3172 ; 44 Ga., 10; 38 Ib., 11 ; 45 Ib., 204; 63 Ib., 312; 59 Ib., 31, 316; 1 Story’s Eq. Jur., 74, 64 c, 64 d ; 1 Johnson's Chan., 543 ; 4 Ib., 410; 5 Paige Chan., 65.

For plaintiff in error: 43 Ga., 420; 10 Ib., 116; 59 Ib., 316; 36 Ib., 541; 31 Ib., 385 ; 16 Ib., 137; 27 Ib., 372 ; 43 Ib., 19; 35 Ib., 258; 63 Ib., 312 ; 61 Ib., 125 ; 55 Ib., 546; 46 Ib., 450 ; Code, §§3219, 3095.

Judgment affirmed.