123 Ga. App. 321 | Ga. Ct. App. | 1971
1. The motion to dismiss the appeal is denied. See Steadham v. State, 224 Ga. 78 (1) (159 SE2d 397) and Code Ann. § 6-809 (b).
2. The issue presented is whether error was committed by the trial court in allowing the defendant to open a default. Defendant argues that the opening was correct because the "trial court lacked jurisdiction over the subject matter which was an equitable action against appellee.” If the court did lack jurisdiction over the subject matter, the only action the trial court could take was to dismiss the case. McDowell v. McDowell, 194 Ga. 88, 93 (20 SE2d 602). The Civil Court of Fulton County has no equitable jurisdiction. Ga. L. 1956, pp. 3271, 3277. The superior courts have exclusive jurisdiction in equity cases. Art. VI, Sec. IV, Par. I, Georgia Constitution (Code Ann. § 2-3901). Whether an action is equitable is determined by its allegations and prayers. Henderson v. Curtis, 185 Ga. 390, 392 (195 SE 152). On appeal, whether a complaint rests in equity and is beyond the jurisdiction of the court of origin, is a matter for determination by the
Judgment reversed with direction.