Callaway v. Martin

• Decision Date: 10 February 1910
• Docket Number: (No. 1,864.)
• Citation: 66 S.E. 1101,7 Ga.App. 357
• Parties: CALLAWAY. v. MARTIN.
• Court: Georgia Court of Appeals

7 Ga.App. 357

66 S.E. 1101

CALLAWAY.

v.MARTIN.

(No. 1, 864.)

Court of Appeals of Georgia.

Feb. 10, 1910.

(Syllabus by the Court.)

1. Injunction (§ 26^*)—Courts (§ 188*)—Municipal Courts — Enjoining Action at Law Requiring Affirmative Equitable Relief.

If, in a suit pending in a city court, the plaintiff sets forth a good cause of action at common law, and the defendant's defense is purely of an equitable character, calling for the granting of affirmative equitable relief, a court of equity will enjoin the suit in th» city court, and itself assume jurisdiction of the cause; but, until stayed by the injunction, the city court should proceed according to the rules of law, and refuse to dismiss the case on the ground that it has no jurisdiction of the defense.

[Ed. Note.—For, other cases, see Injunction, Cent. Dig. §§ 30, 58; Dec. Dig. § 26;* Courts, Dec. Dig. § 188.*]

2. New Trial (§ 108*) — Grounds — Newly Discovered Evidence.

There was no error in refusing to grant a new trial on the ground of newly discovered evidence.

[Ed. Note.—For other cases, see New Trial, Cent. Dig. §§ 226, 227; Dec. Dig. § 108.*]

3. Insufficient Assignments of Error.

None of the assignments of error are meritorious.

Error from City Court of Reidsville; C. L. Morgan, Judge.

Action by A. A. Martin against J. A. Callaway. Judgment for plaintiff, and defendant brings error. Affirmed.

The plaintiff filed suit in the city court of Reidsville on two promissory notes, made by the defendant to one Kennedy. The defendant in his answer admitted the execution and ownership of the notes, and also admitted that they had not been paid, and set up by way of defense that he had executed a deed to real estate to Kennedy, and that Kennedy had made a deed back to him, and had placed the deed on record, but had not delivered it to him. He alleged that the plaintiff had purchased the notes from Kennedy and was seeking to collect them unjustly, and he contended in the answer, that the plaintiff should be enjoined from thus proceeding, but that, as the court had no power to grant such affirmative equitable relief, it "should wash its hands of the case, " and dismiss the same for want of jurisdiction. The court, on demurrer, struck the answer, except as to attorney's fees. The plaintiff made due proof of notice entitling him to recover attorney's fees, and judgment was rendered in his favor for principal, interest, and attorney's fees. The defendant made a motion for a new trial, on the general grounds, and also set forth certain alleged newly discovered evidence tending to support the allegations of the portion of the plea which had been stricken on demurrer, and asked that a new trial be granted on account of this evidence.

W. T. Burkhalter, for plaintiff in error.

E.O. Collins and W. D. Martin, for defendant in error.

RUSSELL, J. (after stating the facts as above). 1. The sole contention of the plaintiff in error as to the action of the court in striking the answer and in refusing to dismiss the petition is that the answer set up a state of facts calling for affirmative equitable relief, and that, since the city court had no power to grant relief of that character, it ought not longer to have retained jurisdiction of the case, but should have "washed its hands" of the entire matter. In support of this contention we are cited to the decision in Ragan v. Standard Scale Co., 123 Ga. 14, 50 S. E. 951, which holds merely that a city court has no power to grant affirmative equitable relief, and that this power cannot be conferred on such a court by consent of the parties. This, of course, cannot be controverted. But it does not follow that, where a suit at common law is filed in a city court, the defendant can come in and oust the court of jurisdiction by setting up facts calling for relief which the court has no power to...