Carparking, Inc. v. Chappell's, Inc.

• Decision Date: 08 November 1957
• Docket Number: No. 19790,19790
• Citation: 100 S.E.2d 896,213 Ga. 637
• Parties: CARPARKING, Inc., v. CHAPPELL'S, Inc.
• Court: Georgia Supreme Court

Page 896

100 S.E.2d 896

213 Ga. 637

CARPARKING, Inc., v. CHAPPELL'S, Inc.

No. 19790.

Supreme Court of Georgia.

Nov. 8, 1957.

Syllabus by the Court.

Jurisdiction of the writ of error in the present case is vested in the Court of Appeals and not in the Supreme Court.

The plaintiff filed an action for damages for an alleged breach of a contract for lease of described premises. By amendment the plaintiff prayed that the defendant be restrained and enjoined from interfering with the plaintiff's possession, or right of possession, of the premises. Paragraph 1 of the amendment alleges that the defendant gave notice to the plaintiff on March 5, 1957, of its intention 'to evict plaintiff under an intruder's warrant.' In paragraph 2 it is alleged that, on March 28, 1957, the defendant 'withdrew the threat of proceeding by process of intruder's warrant against plaintiff,' and notified the plaintiff that on June 1, 1957, the plaintiff 'will be required to surrender possession of the premises to defendant and that in the interim plaintiff would be permitted to occupy the premises as a tenant at will only.' In paragraph 12 it is alleged that, 'If defendant's threats of eviction are carried out, plaintiff will suffer irreparable damages.'

The defendant's renewed general demurrers to the petition as amended were overruled, and the exception is to that judgment.

The parties will be referred to as they appeared in the trial court.

Joseph J. Fine, D. W. Rolader, Atlanta, for plaintiff in error.

Nall, Sterne, Miller, Cadenhead & Dennis, A. Paul Cadenhead, Atlanta, for defendant in error.

HEAD, Justice.

In all cases where it may appear that jurisdiction of a writ of error is in doubt, it is the duty of this court to determine the question of its jurisdiction. Findley v. City of Vidalia, 204 Ga. 279, 281, 49 S.E.2d 658.

Whether a case is one in equity within the jurisdiction of the Supreme Court, or is an action at law within the jurisdiction of the Court of Appeals, must be determined by its allegations and prayers at the time of the judgment complained of. Anagnostis v. Alexandrou, 203 Ga. 752, 48 S.E.2d 521. 'To make a case in equity, the allegations of the petition must be applicable to the equitable relief prayed.' Hollinshed v. Shadrick, 212 Ga. 624, 94 S.E.2d 705, 706; Bernstein v. Fagelson, 166 Ga. 281, 142 S.E. 862; Jasper School District v. Gormley, 184 Ga. 756, 193 S.E. 248; Moseley v. Alspaugh, 192 Ga. 216, 14 S.E.2d 737; Odom v. Atlanta & West Point R. Co., 204 Ga. 328, 49 S.E.2d 821.

'If the averments of the petition do not make a case in equity, prayers for equitable relief would not make the case one in equity.' Mulherin v. Neely,...