Otis v. Graham Paper Co.

• Decision Date: 16 September 1939
• Docket Number: 12923.
• Citation: 4 S.E.2d 824,188 Ga. 778
• Parties: OTIS v. GRAHAM PAPER CO. et al.
• Court: Georgia Supreme Court

4 S.E.2d 824

188 Ga. 778

OTIS v. GRAHAM PAPER CO. et al.

No. 12923.

Supreme Court of Georgia

September 16, 1939

Syllabus by the Court.

The plaintiff brought an equitable petition in the superior court of Fulton, County alleging that the defendant had instituted an action against him in the civil court of Fulton County for recovery of damages to his automobile; that the plaintiff received certain personal injuries in the same collision out of which the defendant's claim for damages to his automobile arose; and that due to the limited jurisdiction of the civil court of Fulton County he can not by way of cross-action have his claim therefor adjudicated in said suit in the civil court. He prayed for a judgment for said personal injuries, that the prosecution of said suit in the civil court be enjoined, and that the claims of both parties be adjudicated in the superior court. Held, that the petition stated a cause of action for injunction. This ruling is not altered by the fact that the plaintiff was sued in the civil court jointly with another person as his employer, since the defendant may make such ohter party a party in the superior court, so as to settle the entire controversy in one action.

Y C. Mitchell, John A. Dunaway, and Bryan, Middlebrooks &amp Carter, all of Atlanta, for plaintiff in error.

W Neal Baird, Neely, Marshall & Greene, Y. C. Mitchell, John A. Dunaway, and Bryan, Middlebrooks & Carter, all of Atlanta, for defendants in error.

REID Chief Justice.

Automobiles operated by Charles Otis and Ralph T. Cheeves were involved in a collision. Otis filed suit in the municipal court of Atlanta, Fulton section (now civil court of Fulton County, and hereinafter referred to as such), against Knight Brothers Paper Company and Cheeves, seeking to recover damages for injury to his automobile. It was alleged that Cheeves was the agent of Knight Brothers Paper Company, and at the time of the collision was in the prosecution and within the scope of his duties as such agent. Thereafter Cheeves filed in the superior court of Fulton County the present suit against Otis and Graham Paper Company, seeking to recover damages for personal injuries which he alleged were received in the same collision in which Otis in his suit in the civil court claimed his automobile was damaged. It is alleged, that Otis was the agent of Graham Paper Company and at the time of the collision was in the prosecution and within the scope of his duties as such agent; that Otis was guilty of certain described acts of negligence in the operation of his automobile, which acts were the sole proximate cause of the collision; that the civil court of Fulton County is a court of limited jurisdiction, with authority to entertain actions for property damage, but without authority to entertain actions for personal injuries; 'that since said court is without jurisdiction to try and give judgment in favor of your petitioner for the personal injuries sustained by him in said transaction, and as your petitioner has no plain adequate remedy at law on account of such want of jurisdiction on the part of said court, it is necessary that a court of equity intervene and temporarily restrain and permanently enjoin said proceeding now pending in said municipal court in so far as that case relates to this petitioner, and require the said Charles Otis to set up his claim in this suit, so that full redress may be had by all parties hereto in a court of competent jurisdiction.' It was prayed that the plaintiff have judgment for said personal injuries and that further prosecution of said suit in the civil court be enjoined. A temporary restraining order was issued. At interlocutory hearing the court overruled a demurrer filed by Otis, and granted an injunction as prayed. The present writ of error calls into question the correctness of these rulings.

The demurrer, so far as material here, was as follows: 'Paragraphs fifteen and sixteen and subparagraphs two, three, four, and five of the prayer should be stricken, for the reason that the allegations therein are irrelevant and immaterial, because this court has no authority to entertain a petition for nor to grant the relief prayed in such paragraphs and subparagraphs, because in them plaintiff seeks equitable relief and injunction against this defendant, when the petition shows that he is a resident of DeKalb County, Georgia, and that no equitable relief is sought against the other defendant, who is a resident of this county. Said paragraphs and subparagraphs should be stricken for the further reason that the plaintiff has an adequate remedy at law. Said paragraphs and subparagraphs should be stricken for the further reason that the petition as a whole, and those paragraphs and subparagraphs particularly, do not set out any ground for the said equitable relief against this defendant, for the reason that he can not be deprived of his right to pursue his suit against both the plaintiff and the plaintiff's principal, which is already pending in the civil court of Fulton County, Georgia.'

The first paragraph of the demurrer is not argued in this court and may be treated as abandoned. See Moore v. Medlock, 101 Ga. 94, 28 S.E. 836. 'Equity, by a writ of injunction, may restrain proceedings in another or the same court, or a threatened or existing tort, or any other act of a private individual or corporation which is illegal or contrary to equity and good conscience and for which no adequate remedy is provided at law.' Code, § 55-101. 'Equity will not enjoin the proceedings and processes of a court of law, unless there shall be some intervening equity or other proper defense of which the party, without fault on his part, cannot avail himself at law. * * *' § 55-103. In Kirkpatrick v. Holland, 148 Ga. 708, 98 S.E. 265, 266, it appeared that Holland filed suit against Kirkpatrick in the...