Mulherin v. Neely, (No. 5835.)
| Decision Date | 14 October 1927 |
| Docket Number | (No. 5835.) |
| Citation | 139 S.E. 820,165 Ga. 113 |
| Parties | MULHERIN. v. NEELY et al. |
| Court | Georgia Supreme Court |
(Syllabus by the Court.)
Error from Superior Court, Burke County; A. L. Franklin, Judge.
Suit by J. G. Mulherin against R. C. Neely, Jr., and others executors of R. C. Neely, Sr., deceased. Judgment for defendants, and plaintiff brings error. Case transferred to Court of Appeals.
W. K. Miller, of Augusta, and E. M. Price, of Waynesboro, for plaintiff in error.
Fullbright & Burney, of Waynesboro, for defendants in error.
HINES, J. Mulherin brought suit against the executors of R. C. Neely, Sr. In his petition he made these allegations: Neely owned and operated various farms containing 16, 000 acres. He worked these farms with croppers, who were unable to supply themselves with the necessaries of life while working the farms and making crops thereon for Neely as share croppers. Neely agreed to furnish them the necessary supplies to enable them to work and make such crops for him. He did not make these advances directly, but procured the R. C. Neely Company, of which he was president, stockholder, and general manager, to make them, and agreed to pay that company for all supples furnished by it to his croppers. As a matter of convenience to Neely, and to save additional bookkeeping, these supplies were charged upon the books. of that company to these croppers in their names, each cropper being charged with the supplies furnished to him; but all these supplies were sold to Neely, and he agreed to pay for them to the Neely Company. This company was ad-judged a bankrupt, and a trustee was duly appointed to take charge of its assets for the benefit of its creditors. The trustee, under order of the bankrupt court, sold all the accounts standing in the name of these croppers. These accounts amount in the aggregate to $31,988.77. Mulherin prayed judgment against the executors of Neely for this amount. By an amendment to his petition Mulherin prayed "for such other or further relief as the nature of the case may require, and to effectuate such relief [the] equity jurisdiction of said court is invoked to protect rights of plaintiff and to afford complete relief." To the petition the executors demurred. The trial judge sustained the demurrer, and Mulherin excepted.
Has this court jurisdiction of the writ of error brought to review this) judgment? If the petition makes a case in equity, this court has jurisdiction. If it does not make such case, the Court of Appeals has jurisdiction. Whether a petition sets forth an equitable or a legal cause of action depends to some extent upon the character of the relief sought; and where, under the facts stated in a petition, the plaintiffs are entitled to either legal or...
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...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, 165 Ga. 113, 115, 139 S.E. 820, 821; Williams v. Aycock, 180 Ga. 570, 179 S.E. 770; Atlanta Finance Co. v. Fitzgerald, 189 Ga. 121, 5 S.E.2d In the present c......
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...one at law or in equity is determined by the allegations of the petition and the nature of the relief prayed * * *.' Mulherin v. Neely, 165 Ga. 113, 114, 139 S.E. 820, 821.' Columbus Plumbing, Heating & Mill Supply Co. v. Home Fed. Sav. & L. Assoc., 216 Ga. 706, 119 S.E.2d 118. The allegati......