May v. Goodwin

• Decision Date: 31 January 1859
• Court: Georgia Supreme Court
• Parties: Pleasant L. J. May and others, plaintiffs in error. vs. Theodore A. Goodwin, defendant in error.

27 Ga. 352

Pleasant L. J. May and others, plaintiffs in error. vs. Theodore A. Goodwin, defendant in error.

Supreme Court of the State of Georgia

JANUARY TERM, 1859.

In Equity, from Macon county. Decision by Judge Lamar, at September Term, 1858.

This case was before this Court at June Term, 1857, and is reported in 22d Ga. Rep., where the facts will be found duly stated.

The following is the judgment pronounced by the Supreme Court upon the former hearing:

"Theodore A. Goodwin, plaintiff in error, vs. Pleasant L. J. May et al., defendants in error.

This case came before the Court upon a transcript of the record from the Superior Court of Macon county, and after argument had, it is considered and adjudged by the Court that the judgment of the Court below be reversed upon the ground, that that Court erred in holding that a conditional parol sale of personal property was not good against a mortgage given by the purchaser to a creditor who had no notice of the defect in the title."

The case by order of the Court below was reinstated upon the appeal docket, and the aforesaid judgment of the Supreme Court made the judgment of said Superior Court.

The case coming on for trial at September Term, 1858, counsel for the defendants moved to dismiss the bill on the ground that complainants had full and adequate remedy at law, and that a Court of Equity has no jurisdiction of said cause as made by the bill.

The Court overruled said motion, and ordered the causeto proceed. Whereupon, counsel for defendants excepted, and asigned as error said decision.

Cooke & Montfort; Geo. R. Hunter; and M. H. Bland-ford, for plaintiffs in error.

Sam Hall, contra.

By the Court.— Lumpkin, J., delivering the opinion.

We are inclined to think that this is a good bill. The claimants or mortgagees, by discharging complainant's demand, would entitle themselves to the balance of the money arising from the sale of the furniture.

Were it otherwise, it is too late to move to dismiss the bill for want of equity, because the complainant had a common law remedy. A motion to dismiss a bill for want of equity, proper, may be made at any time. As for example, if a bill be filed for the specific performance of a parol contract respecting land, and it appears from its face that the agreement is clearly within the statute of frauds, a motion to dismiss for want of equity may be made at the final hearing.

There are some cases where the judgment of a Court is void for want of jurisdiction. As where the Ordinary grants letters of administration out of the county of the intestate's residence at the time of his death. And this also may be taken advantage of at any time. But who doubts the decree rendered in this case, notwithstanding there may have been an adequate and ample remedy at law.

In this State it is frequently rather a question of convenience, than of jurisdiction strictly. And for the defendant to litigate for years, as the defendant in this case has done, and the case is about to be submitted to a jury for a final determination, then to move to dismiss because the party has a common law remedy, the objection comes too late. If the fact be so, the defendant should have taken advantage of itby plea or demurrer, otherwise, he will be adjudged to...