Mallory Bros. & Co. v. Cowart, 90 Ga. 600

Mallory Bros. & Co. v. Cowart

90 Ga. 600 | Ga. | 1892

Lumpkin, Justice.

The errors complained of are the refusal of the judge to sustain a demurrer to the equitable petition of Mrs. Cowart, and the granting of an injunction upon the sworn allegations thereof. These allegations were, of course, admitted to be true so far as the disposition of the demurrer was concerned, and it also appears that they were not denied or contested by answer or evidence before the judge. His action in granting the injunction, therefore, was based upon the assumption that they were true, and we have dealt with the ease accordingly. What may. appear as the truth when the trover suit is tried we cannot foresee. If the statements contained in the petition before us are properly alleged and proved as a defence to that suit, the plaintiffs cannot recover, but this fact of itself presents no reason for denying them the right to try their case upon its merits, establish their right to recover if they can, and require the defendant to make out her defence by testimony. No action to which there is a complete defence at law should be enjoined merely because it may appear to the judge on the hearing of an equitable petition to restrain its further progress, that plaintiffs could not recover if the same state of facts should be brought out at the trial, because the proper time and place for the development of the facts is at such trial, and it is then and there the facts of the case and the legal result of them should be ascertained and decided by a jury. At any rate, a suit should not, for the reason indicated, be thus cut off by an order at chambers, and consequently, the order granted by the judge in this case should not operate to restrain the-plaintiffs from proceeding with their action of trover. It is not perfectly clear that it was intended to do so ; but to free the matter from all doubt, we have directed that it shall not be so construed or treated. As a general rule, where equity, for any *606proper reason, will interfere with the conduct of a suit, it will take jurisdiction of the entire case, and by final decree settle and adjudicate the whole controversy between the parties. But in the present state of our law, it does not necessarily follow that this should be done where equitable relief may be needed in some matter incidental to, but not affecting, the real merits of the litigation. Acts 1885, p. 36. In the present case, so much of the equitable relief sought by Mrs. Cowart as she is entitled to have, might have been obtained by a plea to the trover suit, setting up the facts contained in her petition and praying for an injunction accordingly, and in our opinion, this, under the act of 1885, above referred to, would have been the better practice. Consequently, if the judge had seen proper to deny her prayer for injunction on the ground that she might have obtained it by such a plea as we have indicated, this court would not have interfered with his discretion in so deciding. It was not, however, an abuse of that discretion to treat Mrs. Cowart’s petition, so far as it sought to restrain interference with her possession and use of the engine, as if it had been merely in the nature of a plea to the action brought against her. While this practice was irregular, yet as the action of the court, as modified by the direction herein given, really did substantial justice so far as the equitable relief granted is concerned, we do not feel constrained to reverse the judgment merely because the mode in which the relief was sought and obtained does not conform to what would have been the better and more regular practice in a case of this kind. Treating the petition of Mrs. Cowart as available only to obtain the particular equitable relief to which she was ehtitled, and as being in the nature of an equitable defence, and not as available to dispose of the entire controversy, and both cases being in the same court and consequently subject *607to the control of the judge, his order, in so far as it restrains the sheriff from further interfering with the possession and use of the engine by Mrs. Cowart, may be sustained. We do not wish to be understood as giving our unqualified sanction to this method of procedure ; but in this particular case, and in view of its special facts, and because in our opinion substantial justice has been done, the judgment may be allowed to stand to the extent we have indicated. As the facts appeared before the judge at the hearing, Mrs. Cowart had virtually paid for the engine in cash and by the conversion of her securities by Mallory Bros. & Co , and this being true, there was no necessity for taking it from her possession by the harsh process of bail-trover. Indeed, there was no occasion for suing her at all. She alleges her inability to give the bond required by law, and avers that the plaintiffs will give the bond they are permitted to give upon her default, take the property, and thus occasion her great damage and loss in her business. Assuming all these things to be true (which the judge properly did for the purposes of the hearing before him), it was right to protect Mrs. Cowart from unnecessary injury and inconvenience, by allowing the engine to remain where it was. This was accomplished, and at the same time the plaintiffs were sufficiently protected by the bond required of Mrs. Cowart and the restraint put upon her by the judge’s order forbidding her from removing the property. Under this order, she will be given an opportunity, without having her business broken up, to defend the trover suit, and the plaintiffs therein are not injured, for they will be allowed to proceed with it and establish their right to recover, if they can. Judgment affirmed, with direction.