43 S.E. 702 (Ga. 1903), Gould v. Barrow

• Citation: 43 S.E. 702, 117 Ga. 458
• Opinion Judge: LAMAR, J.
• Party Name: GOULD v. BARROW.
• Attorney: Jno. S. Schley and Wm. P. Hardee, for plaintiff in error. Adams, Freeman, Denmark & Adams, for defendant in error.
• Judge Panel: except LUMPKIN, P.J., absent on account of sickness, and COBB, J., disqualified.
• Case Date: March 18, 1903
• Court: Supreme Court of Georgia

Page 702

43 S.E. 702 (Ga. 1903)

117 Ga. 458

GOULD

v.

BARROW.

Supreme Court of Georgia

March 18, 1903

Syllabus by the Court.

1. In a proceeding to obtain an accounting the complainant is not obliged to show how much is due. But the law will not do a vain thing, and order an accounting, when the petitioner does not aver facts sufficient to indicate that something will be found to be due to him by the defendant.

Error from Superior Court, Chatham County; P. E. Seabrook, Judge.

Action by John D. Gould against Pope Barrow, executor. Judgment for defendant, and plaintiff brings error. Affirmed.

Jno. S. Schley and Wm. P. Hardee, for plaintiff in error.

Adams, Freeman, Denmark & Adams, for defendant in error.

LAMAR, J.

At the date of the credit sale to Tripp for $5,200 the principal and interest of petitioner's debt amounted to $4,959.05, to which was to be added attorney's fees and costs of foreclosure and sale, which it might be fair to say would have approximated the difference between $4,959.05 and $5,200. According to petitioner's own showing, it was doubtful if anything would be due to him on an accounting. But, even if there would be a balance, the petitioner, notwithstanding a demurrer, failed to amend or to allege that Tripp's notes were due, or that Tripp had paid his purchase-money notes, or that the defendant's testator or his executor had received more than petitioner owed, or that they had in hand money due to him, or that something would be found due on the accounting. He was not obliged to allege how much was due, but was bound to aver facts to show that he had a cause of action, and that something would be found due him. Civ. Code 1895, § 4960. The law will not do a vain thing, and order an accounting, when a petitioner does not show that he will gain thereby.

It is unnecessary to consider whether the suit was premature, or whether, prima facie, this appears to be such an intricate and complicated account as would justify a resort to equity (Civ. Code 1895, § 3989), or whether the demand was stale.

Judgment affirmed. All the Justices concurring,

Page 703

except LUMPKIN, P.J., absent on account of sickness, and COBB, J., disqualified.