124 Ga. 750 | Ga. | 1906
The first question to be determined by us in the. ■consideration of this case is whether the demurrer to the petition, upon the ground that the petitioner had an adequate remedy at. law, was well taken. The act amending the charter of the City of Gainesville, approved December 12, 1892 (Acts 1892, p. 172), provides that when an execution has been issued against a property ■owner for work done on the street or sidewalk abutting upon his property, he shall have the right “to file an affidavit denying that h.e owes the whole or some part thereof of the sum for which the
The further claim of the plaintiff, that three executions had been issued, and an equitable petition was necessary to prevent a multiplicity of suits, is alsp without merit.. Three executions do not bring about the multiplicity of suits contemplated by the code as a ground for the exercise of the extraordinary powers of a court of equity. The three executions have been issued by the City of Gainesville against the defendant in error. Two have been levied, each upon a separate lot of land. The third has not been levied, and. does not seem to be directed against any specific property. But the allegation is that the marshal is threatening to enforce it by levy. The general rule is that a court of equity will interfere to prevent a multiplicity of actions where they rest upon some common right invaded, or upon some common injury inflicted; that is, where there is one common right in controversy which is to be established by or against several persons, or one person asserting a right against many, or many against one. Under such circumstances a court of equity will not permit a party to be harassed by a multiplicity of suits, but will determine the whole matter in one action. Civil Code, §4894; Smith v. Dobbins, 87 Ga. 316. Even if the issues arising out of the levy of the two executions were identical, the eases would not be within the rule above referred to. Tt has been said that where relief can be clearly afforded by a court of law by an order consolidating the suits, an injunction will be refused. Bispham’s Equity (3d ed.), §417. The law requires an affidavit of illegality to the execution of the character now in question to be returned to the superior court for trial; and if it should appear that the two were identical, although the property levied on was different, the court in its discretion might consolidate the cases. We do not think the facts of the case bring it within the rule which authorizes a court of equity to interpose by injunction to prevent a multiplicity of suits.
But it is said that the executions which have been levied, as well ■ as that which has not been levied, constitute clouds upon the title
Judgment reversed,