65 Ga. 32 | Ga. | 1880
Jackson Perkins exhibited his bill against William PL. Walker, Augusta A. Walker and S. Scandrett, administrator of Robert Scandrett, alleging that on the 17th day of December, 1870, he purchased from Walker & Walker three hundred and fifty acres of land in Taylor county, and gave his fournotes, one for$350.oo, due January 1st, 1871 ; one for $350.00, due January 10th, 1871; one for $749.00, due December 25th, 1871, the other for $798.00, due December
Complainant amended his bill and alleged that at the time of the sale under the execution he owned the execution, paid $800.00 for it, was obliged to buy it to quiet his title; that he paid $50.00 to have the land sold, and that these amounts ought to be allowed to him as a set-off against the judgment.
He further alleges that he pleaded these facts in defense of the suit at April term, 1874. That James Johnson, judge presiding, ruled that they could not be pleaded at law, but could be prosecuted by a separate bill; that he
Defendants demurred generally to the bill as amended. The court overruled the demurrer, and defendants excepted. Scandrett, administrator, died, and his executors were made parties.
The ground on which the demurrer rests is, that the complainant had a complete remedy when he was sued at common law, and did not avail himself of it, and is concluded by the failure so to avail himself of that defense, of which he had full knowledge. The fact is that he did file a plea, but the presiding judge—Judge James Johnson'—being of the opinion that he must go into equity, the plea was withdrawn, and judgment went by default against the complainant.
1. There can be no doubt that if a defendant has a good legal defense to a suit at law, he must then make it, or he will be concluded, Code, §3129; and equity will not relieve him, unless he failed to make the defense by the fraud of the other party or accident, and without fault in himself. Code, §3129.
But the defense in this case was equitable. Was he bound to plead this equitable defense at law ? Certainly not, if it was necessary to bi'ing in other parties ; because a court of law cannot make new parties to a cause. Code, §3480. Radcliffe & Lamb vs. Varner & Ellington, 56 Ga., 222. Here the Walkers were made parties ; they seem to be necessary parties ; they held the title to the land sold to Perkins; they made the false representations; and to quiet the possession of Perkins, it would seem that they should be made parties and be heard in the case, and a decree be rendered against them too. Accordingly they were made parties.
2. But it is said by the defendants’ counsel that the record shows that the bill was dismissed as to them in 1875, and such an order does appear of record. But the attention of the court below was not called thereto at all,
But the judgment overruling the demurrer is in these words:
“ Jackson Perkins vs. H. C. Holbrook, executor of Robert Scandrett, F. W. H. Walker and Augusta Walker.
^or 'njllnct'on-
“ After argument had, it is ordered by the court that the demurrer to said bill as amended be, and the same is hereby, overruled, and that said case stand continued. April Term, 1879.”
So that all were then treated as parties. And in the bill of exceptions they are still treated as parties, and the case, as on trial on the demurrer, is alleged to be “ a case pending on the equity side of the said court, to-wit: Jackson Perkins, complainant, vs. Elam B. Waters, Henry Holbrook, executors of Robert Scandrett, and Wm. H. and Augusta Walker.” Therefore, it is clear that the judgment complained of here in this writ of error is a judgment on this bill, wherein the Walkers as well as Scandrett’s executors are parties; and in that bill there is equity; and the overruling the demurrer to that bill is not error.
It is unnecessary to consider the question whether there are other good reasons in this record why this bill should carry the case to the jury. It would seem settled that generally the defense, even if equitable, must be made to the suit while in progress, 52 Ga., 469; 55 Ga., 630; but, independently of the necessity of new parties, other circumstances might authorize equity to interpose even after judgment, and the failure to make a defense before judgment with full knowledge of its existence, if that defense be purely equitable. But “sufficient unto the day is the evil thereof.”
Judgment affirmed.