McDonald v. McDonald, 28702
| Decision Date | 01 May 1974 |
| Docket Number | No. 28702,28702 |
| Citation | 205 S.E.2d 850,232 Ga. 190 |
| Parties | , 14 UCC Rep.Serv. 1172 Harold P. McDONALD et al. v. Anna T. McDONALD. |
| Court | Georgia Supreme Court |
George G. Finch, Atlanta, for appellants.
Reed & Friedewald, Raymond M. Reed, Marietta, for appellee.
Syllabus Opinion by the Court
This is an appeal from the grant of an injunction below and from an order overruling defendants' motion to dismiss. The procedural background will best appear from the following summary of the facts.
Harold P. McDonald and Callie P. McDonald, defendants below, and the parents of Larry McDonald, who was formerly married to plaintiff, Anna T. McDonald. For clarity, the defendants will be termed Dr. and Mrs. McDonald, plaintiff will be referred to as 'Anna,' and her former husband as 'Larry.'
In 1963, Dr. and Mrs. McDonald lent to Anna and Larry, then married to each other, $11,000, taking a note signed by both Anna and Larry. With the money they purchased a house taking title in both names.
Anna and Larry were subsequently divorced in 1971, and the jury in the divorce case found that the note should be paid in full by Larry, and the judgment entered in the divorce action so ordered.
In 1973, as holder of the note and one in possession thereof, Dr. McDonald filed suit on the note against both Larry and Anna. Bringing the instant suit, Anna prayed for a restraining order prohibiting the McDonalds from seeking payment on the note from her. The McDonalds' motion to dismiss her complaint was overruled, and the court below after a hearing granted the interlocutory injunction from which the McDonalds now appeal.
1. The fourth enumeration of error contends that the court below erred in ruling that the note could be enforced only by the joint action of both McDonalds as joint payees, and not by Dr. McDonald alone as one who had possession. This enumeration is meritorious, Code Ann. § 109A-3-116(a), and the court below erred in the ruling complained of.
2. Enumerated errors 2, 5 and 6 raise the central issue of whether the court below ruled properly that the judgment in the divorce action was effective to cancel Anna's liability on the note even though the McDonalds, to whom her liability on the note ran, were not parties to the divorce action. It is the McDonalds' position that such a result violates due process by depriving them of their property by an adjudication in an action to which they were neither parties nor privies. Anna's position is that under Code § 55-101 equity may restrain acts 'contrary to equity and good conscience', and that Dr. McDonald's suit on the note is such an act because it is designed to contravene the prior judgment in the divorce action and to harass Anna and destroy her financially. As indicia of the McDonalds' intent to harass her, she points to the fact that Larry is in default in the suit on the note and the McDonalds are making no move to collect from him although Dr. McDonald pays Larry's salary as an employee and could collect from those funds. She asserts a 'fraudulent combination to oppress the complainant' which was held in Rogers v. Atkinson, 1 Ga. 12, to justify an injunction, and asks in oral argument that this court remove all issues to the superior court to resolve the questions of equity, harassment and fraudulent oppression.
Although she concedes that equity will not grant relief where the law affords plaintiff an adequate remedy, Code § 37-103, Anna contends that she has no adequate remedy because, she alleges, Larry made himself judgment-proof before his father sued on the note. However, the final judgment in the divorce action ordered Larry to pay the note when due and to the extent to which he defaults on the obligation Anna may seek her remedy in...
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