37 Ga. 364 | Ga. | 1867
Lead Opinion
The plaintiff, Mordecai, had commenced a suit in the Superior Court of Sumter count, on a note made by Cutts as principal, with Stewart as security, and, at the same time, at law in the same Court, the plaintiff was proceeding to foreclose a mortgage on real property made by Stewart, the security, to further secure the note mentioned, when he thought proper to move, during term time, the discontinuance of both of his suits. After making a motion to that effect, and before
A reversal of the rulings of the Judge as stated, is the purpose of the bill of exceptions here.
1. I take it to be a principle universally recognized in both the English and American system of jurisprudence, that whenever any Court of competent jurisdiction has possession of a cause, it will be retained by the Court having possession to the exclusion of all other Courts.
2. The granting of the injunction at the instance of Stewart upon such a bill as was filed in this case was, in my opinion, a palpable violation of the rule stated. To withdraw the matters in controversy at law to a Court of equity, as the sanction of the injunction in this case did, can be justified on principle only by its being made clearly apparent that the defences of the defendants at law could not be made as fully there as in a Court of equity and adequate relief afforded. This involves, necessarily, an examination into the existing jurisdiction of the Superior Court as a Court of law, and the Superior Court as a Court of equity.
The plaintiff elected to prosecute his rights at law. This is a right given by the Code, and beyond the control of the Judge. Previously to this right of election being conferred if the cause of a plaintiff was of an equitable nature, on the
This being the undoubted right of a plaintiff in Georgia, it follows that a defendant when sued at law, having an equitable defence, has a right to its assertion at law as fully as that given to a plaintiff. Virtually the Code invests the law side of the Court with concurrent jurisdiction with the equity side.
The innovation made upon our old system is a great one ; it has not taken away any jurisdiction of the equity side of the Superior Court, but it has very largely augmented that of the law side. It appears to me that if the Judges of the Superior- Courts shall carry into operation what I believe to be the legislative will, in good faith, uninfluenced by their predilections for the old usages in which they were educated and to which they have become attached by habit, the result will be the determination of all suits at law on equitable principles. The constitution having conferred on the Superior Courts the authority to issue writs of mandamus, sci. fa., prohibition and all other writs necessary for carrying its powers fully into effect, nothing it would seem is wanting to give efficiency to the law side of this Court in its remedial justice, clothed as it has been with the concurrent jurisdiction aforesaid. If this view of the great change in our system of Jurisprudence be correct — and that it is, I think is beyond the power of any intellect to controvert successfully by sound reasoning — the enquiry then presses on us for solution: What was in the case below to withdraw it from the jurisdiction which had possession of it, and to cause the litigation
To the suits at law of Mordecai, all the defences alleged by Stewart, the security, in his bill of injunction, could, I think, beyond the shadow of refutation, have been made fully at law. What were they ? That, in previous transactions between Cutts and Mordecai, Cutts had paid to Mordecai large sums of usurious interest, and that he (Stewart) asked the assistance of a Court of Equity to give him the right to sue for and recover such usurious interest, or to compel the amount of it to be credited by Mordecai on the note in suit.
3. Now the right to sue for and recover back usurious interest paid is, by a special statute of the State, conferred on the debtor who has paid it. I will not stop to discuss the design of this act, evidently originating in considering usury as odious and to be repressed by penalties — or whether what is in the nature of, if not actually a penalty, can be a matter of subrogation, but I will say that surely there can be no equity whatever in subrogating Stewart to the personal privilege given to Cutts to sue for and recover usurious interest paid by Cutts in other and long passed transactions and with which Stewart had not the slightest connexion — especially when, for Quits, his principal, he does not by his bill show that he ever paid a cent.
The mere fact that he is a security, and liable for Cutts to Mordecai, cannot raise an equity in his favor — nor will these facts together with that of the insolvency of Cutts. Actual loss is necessary, and to the extent of such actual (not apprehended) loss only, can a Court of Equity subrogate him as security to the statutory right of Cutts to recover back the usurious interest paid. If right in the principle stated, what other demonstration is needed to prove that Stewart’s bill, as to this matter, furnished no ground whatever for the interference of a Court of Equity.
4. Nor did the discovery sought furnish a proper ground for its interposition — as it is undeniable that as full a discovery can be had noto at law in Georgia, upon interrogatories or an examination of the parties on the witness stand
The Judge below refused to consider the application, holding that as the partnership was not dissolved and that as matters of partnership were exclusively of equity cognizance, the matters involved could only be disposed of in that
What more could have been done in a Court of Equity ? That this could not have been done at law before the Code, is the opinion of the profession generally. The parties would have first been compelled to have gone into equity, procured a dissolution of the partnership, had the accounts among themselves scrutinized and adjusted, then a decree for the sale of the property in order to make a partition. But it is not so now. “ And it will require time for the pi'ofession to wake up so as to comprehend the full meaning of the Code, its length, breadth, height and depth.”
A new era in our State jurisprudence began with the operation of the Code. It will be a fatal’ mistake to adhere to the routine and forms in which we have been educated.
I am sensible they will be abandoned with reluctance, but it is to be hoped, as it involves no matter of will on the part of the Bench, that it will conform fully and cheerfully to legislative enactment, especially when within the range of its constitutional powers, as this great change unquestionably is.
■5. That, on the part of the defendants below, there is a strong desire to retain the pending litigation in the county in which it was begun, is evident from the averments of the bill
A suit may not be dismissed after a plea of set-off is filed so as to interfere with the plea, without leave of the Court. See section 2856.
TÍie record shows that after the motion was made to dismiss, and during the same day, a plea which the defendants called a set-off, was filed. Had that plea shown on its face the existence of a mutual demand, or, perhaps, an equitable defence, as a right to an equitable set-off in the security, with sufficient certainty, then the plaintiff could not, of right, have dismissed his suits, so as to interfere with that plea, without leave of the Court and upon terms imposed by the Court.
If the plea had been one of set-off of sufficient certainty in its frame, it would, by law, have accomplished what the injunction was sought for, to restrain plaintiff’s right to dismiss. If it was insufficient, surely a bill, whose equity was founded on that plea, cannot accomplish the restraint sought without the violation of that maxim that “ equity follows the law.” If the plea was insufficient, the result is necessarily a judgment that the injunction was improvidently granted.
If the plea had been sufficient, tire injunction was improperly granted. There is no escape from this dilemma, for the plain reason that the Court of law had possession of the cases
Judgment reversed.
Concurrence Opinion
concurring:
Until the adoption of the constitution of 1861, I think a Court of Equity is not, in express terms, mentioned in our fundamental law.
1. “ The constitution does not provide for the exercise of any equity jurisdiction whatever. * * The constitution declares that the judicial powers of this State shall be vested in a Superior Court and in such inferior jurisdictions as the legislature shall, from time to time, ordain and establish. * * * The term ‘judicial powers,’ embraces all cases, criminal and civil, at common law and in equity, and the legislature, in regulating them, were authorized to make any arrangement of them not repugnant to the constitution. In the exercise of this power they vested jurisdiction in equity cases in the Superior Courts. * * The equity jurisdiction was created by the act of 1799. (Cobb’s N. D. 467; sec. 53 of the Judiciary Act.) It was a special grant, and gave an exclusive jurisdiction. It authorized the Superior Courts to ‘exercise the powers of a Court of Equity’ by such proceedings as were ‘usual in such cases.’ ” Gilbert vs. Thomas, 3 Ga. R., 579 and 580. In Beall vs. ex. of Fox, 4 Ga. R., 404, it is decided that “ the Superior Courts in this State are empowered to exercise general equity jurisdiction, in all cases where a common law remedy is not adequate.” In delivering the opinion of the Court, p. 423 and 424, Judge Warner says, “ When we take into consideration the contemporaneous construction which has been given to it (the 53d section of the Judiciary Act,) in favor of such general equity jurisdiction, in all cases where common law remedy was not adequate by our Courts, for a period of nearly fifty years, without any attempt, on the part of the legislature, to restrict its exercise, we can not now consider it as an open question.” How, the Revised Code, section 3045, says, “ Generally, equity jurisprudence embraces the same matters of jurisdiction and modes
If, after the institution of his action at law, he wished to have the testimony of his adversary in aid or defence of his common law action, he could file a bill for the discovery of testimony. The act of 1847, Cobb’s Dig. 465, authorized parties to compel discoveries at common law. If the act of 1820 had received that liberality of construction to give Courts of law jurisdiction of equitable causes of action, which the 53d section received, in order to give the Courts of Equity jurisdiction of causes of a general nature, there never would have been much necessity for going into a Court of Equity at all. We would not have witnessed the anomaly of a Judge of the Superior Court permitting a judgment to go against a party to-day, and to-morrow as chancellor enjoining it, and after this, submit the case to be tried by another jury, selected in the same manner as the previous one presided over by the same Judge; and in direct violation of the act of 1820, hold the party “ to proceed with the forms of equity.” By reading the opinion in the case of the Justices, etc., vs. Hemphill, 9 Ga. Rep., 65, it will be seen how reluctant our Courts then were to give effect to this act. In Cook vs. Walker, 15 Ga. Rep., 473, Judge Lumpkin, after giving a very interesting history of equity jurisdiction in Georgia, says: “The act of 1820 complains that equity had drawn to itself exclusive jurisdiction of the five sorts of cases therein mentioned; and confers concurrent common law jurisdiction.”
2. Thus stood the law at the adoption of the Code. By sec. 3026 of the Revised Code, “ Equity jurisdiction is established and allowed for the protection and relief of parties where, from any peculiar circumstances, the operation of the general rules of law would be deficient in protecting from anticipated wrong, or relieving for injuries done. Sec. 3027. Ho suitor, however, is compelled to appear on the equity side of the Court; but he may institute his proceeding for an equitable cause of action upon the common law side of the Court at his option, and the Court may allow the jury to
3. It does not take away, or at all interfere with the equity jurisdiction, as specified in sec. 3045, but extends the jurisdiction of a court of law so as to embrace equitable, causes of action; in other words to permit the party moving to elect whether he will “proceed with the forms of equity” or not.
4. Once a party elects his forum he will be bound by such election, for where law and equity have concurrent jurisdiction, the Court first taking will retain it unless a good reason can be given for the interference of equity, Rev. Code, 3041. It follows, from what has been said, that a party may institute his proceeding at common law for any cause of action, whether legal or equitable, and have such relief as the facts of his case may show him to be entitled; and on the other hand a defendant may set up, to any proceeding instituted against him at law, any ground of defence which he may have, whether legal or equitable, to resist a recovery by the plaintiff. If he have a set-off of an equitable nature, or any other intervening equity, not reached by the principle of the common law, he may set this up as a defence to a common law proceeding and have full, complete and adequate relief, in relation to his claim, of whatever character it may be.
I am aware that what is here said does not seem to harmonize with the decision in the case of Dudley vs. Love, decided at December term, 1866. In that case no question was made as to the powers of a Court of Equity, and the Court admitted that an additional allegation would have entitled the party to an injunction. The question of jurisdiction was not raised in that case; the question there decided, was as to diligence, etc., nothing more. Hence, what is said there should be understood in reference to the question
5. In the case at bar, Mordecai commenced his proceedings at law; he had a right to do so; and having gone into that forum, the defendant has no right to oust that tribunal of jurisdiction over Mordeeai’s ease, in order that Stewart may have his equitable set-off adjudicated with it. Stewart has an equitable cause of action, and in relation to that he can select his forum. He may, as he has done, proceed in a Court of Equity, and have his rights adjudicated ; or he may, as a defense to the case of Mordecai against him, set up this equitable cause of action, and have the merits of the whole controversy on both sides passed upon in this case, at his option. He shows no sufficient reason for taking Mordecai’s case into equity; but he does show a good case for equity in his own favor against Mordecai. Such being the case, he was not entitled to an injunction to restrain Mordecai from proceeding with his common law action, nor was Mordecai entitled to have Stewart’s bill dismissed, because it states a good equitable cause of action, and if true entitles Stewart to a decree against Mordecai. Stewart has a right to proceed to trial on his bill, and Mordecai, being relieved of the injunction, may proceed with his common law proceeding. It may be that Stewart may dismiss his bill and set up the matters therein alleged as a defense to Mordecai’s suit.
6. I have no doubt that if Cutts assigned to Stewart this claim for usury before Mordecai sued Stewart, that it would be good as a set-off at law, without reference to the sections of the Code already cited. By sec. 2218, Rev. Code, “All choses in action arising on contract may be assigned so as to vest the title in the assignee.” Chitty defines choses in action to be “rights to receive or recover a debt, or money, or damages for breach of contract, or for a tort connected with contract, but which cannot be enforced without action.” 1 Ch. Pr. 99. A right to recover a debt, or damages for breach of contract, may be assigned so as to vest the title in the assignee; and the person in whom is the title or legal interest has a right to sue for the recovery thereof. 1 Ch. Pl.
7. Stewart filed a plea of set-off to Mordecai’s action against him; this placed it out of the plaintiff’s power to dismiss his action so as to interfere with that plea, unless by leave of the Court, on sufficient cause shown, and on terms prescribed by the Court. Rev. Code, sec. 2856. Therefore the plaintiff had no right to dismiss his action of his own mere motion but must apply to the Court for that purpose, if he wish to dismiss, and the Court will doubtless prescribe such terms as will meet the justice of the case, and protect the rights of both parties.
The conclusion at which I arrive is that the Court erred in not dissolving the injunction, and his judgment holding it up should be reversed; that Stewart may continue to press his bill to trial if he wish to do so, or he may dismiss that proceeding and set up his equitable set-off against the plaintiff’s demand at law; and that Mordecai can not dismiss his case so as to interfere with Stewart’s plea of set-off unless by leave of the Court on sufficient cause shown and on terms prescribed by the Court, whose duty it is to see that justice is done to both sides.
Judgment reversed.
Dissenting Opinion
dissenting:
In this case, I cannot concur with my brethren in the judgment which they have rendered. They differ in their reasons for the judgment, but concur in the general result thereof.
This is a bill filed by Stewart against Mordecai and Cutts, seeking to exxjoin Mordecai from foreclosing his mortgage