White v. North Ga. Electric Co

• Decision Date: 15 June 1907
• Citation: 58 S.E. 33,128 Ga. 539
• Parties: WHITE et al. v. NORTH GEORGIA ELECTRIC CO. et al.
• Court: Georgia Supreme Court

58 S.E. 33

(128 Ga. 539)

WHITE et al.

v.NORTH GEORGIA ELECTRIC CO. et al.

Supreme Court of Georgia.

June 15, 1907.

1. Injunction — Contempt — Multifarious Petition.

If a petition for injunction and other relief is multifarious, and an objection is properly made, urging multifariousness as a reason why the prayers should not be granted, it is erroneous for the court, upon such petition, to grant an injunction and render a judgment finding the defendants in contempt of court for violating a former injunction declared upon in the suit.

2. Action—Joinder of Causes of Action— Multifarious Petition.

A petition which embraces two claims by separate and distinct parties against separate and distinct parties, where there is no common right to be established, is multifarious.

[Ed. Note.—For cases in point, see Cent Dig vol. 1, Action, § 511.]

3. Same.

The allegations of the petition in this case were of such character as to render the petition multifarious. Appropriate objection being taken thereto, it was erroneous for the court, irrespective of any other question in volved, to grant the injunction and adjudge the defendants in contempt of court. (Syllabus by the Court.)

Error from Superior Court, Rabun County; J. J. Kimsey, Judge.

Action by the North Georgia Electric Company and others against S. E. White and others. Judgment for plaintiffs, and defendants bring error. Reversed.

Brown & Randolph, J. J. Bowden, R. E. A. Hamby, and Spencer R. Atkinson, for plaintiffs In error.

H. H. Dean, for defendants in error.

ATKINSON, J. 1, 2. As a general rule distinct and separate claims of or against different persons cannot be joined in the same action. Civ. Code 1895, §§ 4938, 4946. In equity, where there is a common right to be established by or against several, and one Is asserting the right against many or many against one, equity will determine the whole matter in one action. Civ. Code 1895, § 4846. Equity is ancillary, but never antagonistic to the law. Civ. Code 1895, § 3923. The sections of the Code above referred to are entirely in harmony. The claims are not separate and distinct where there is a common right to be established by several against one or more. The contrary is true if no common right is involved, and if there is no community of interest between the parties suing. The common right referred to may consist of a joint interest in the cause of action declared upon, or of separate interests in the particular subject-matter of the suit. An example of the first class would be a suit upon a promissory note payable to several persons instituted by the several payees because each has an interest in the note and is entitled to collect it. An example of the second class would be a suit by several creditors having distinct and separate claims against an insolvent debtor, instituted for the purpose of marshaling assets of the debtor. In such case there is no joint ownership of the several claims asserted against the insolvent debtor, but all are interested in the disposition to be made of his property. It may be said that where several sue jointly, if there be not a joint interest in the claim declared upon or a common right in the object sought, the claims will be separate and distinct, and cannot be joined. With an improper joinder of causes of action the suit will be multifarious.

The doctrine of multifariousness is ably discussed by Mr. Justice Fish in Conley v. Buck, 100 Ga. 187, 28 S. E. 97, and the "common-right" test applied. There it is said: "An equitable petition by a judgment creditor against the defendant in execution and others alleged, in substance, that they had all entered into a conspiracy to defeat the collection of the debt upon which the judgment was founded, that the common object of all the conspirators was to 'hide' and 'cover up, ' in the names of the conspirators other than the defendant in execution, property which really belonged to him, and that, in pursuance" of this object, various deeds had been executed purporting to convey specified parcels of realty to these conspirators, which in fact belonged to the judgment debtor; the particulars in each instance being set forth. The petition prayed for the cancellation of the various conveyances which were, for the reasons stated, alleged to be fraudulent; and for a judgment subjecting all the property to the petitioner's execution. Held, that this petition was not demurrable as failing to set forth an equitable cause of action, nor as being multifarious, nor for want of sufficient fullness in stating wherein the alleged fraudulent acts of the several defendants consisted." So, also, in Van Dyke v. Van Dyke, 120 Ga. 984, 48 S. E. 380, the subject was considered. Mr. Justice Fish, again speaking for the court, said (page 988 of 120 Ga., and page 382 of 48 S. E.): "It is not true that since the passage of the uniform procedure act of 1887 multifariousness is no longer a ground of demurrer to an equitable petition. That act allows the joinder of equitable and legal causes of action in one suit, but an equitable petition that would have been demurrable for multifariousness in joining separate and distinct causes of action against different defendants, prior to the passage of that act, is still demurrable on such ground." Numerous other illustrations of the "common-right" test may be found in the decisions on the subject of multifariousness cited in 9...