Peacock v. Stults , 147 Ga. 559 ( 1918 )

Per Curiam.

A. Peacock brought an equitable petition seeking to enjoin D. D. Stults from proceeding with the prosecution of a certain suit in the city court of Bainbridge. He prayed for transfer of the case to the superior court, for a temporary restraining order, and for general relief. Upon the hearing the court dissolved the temporary restraining order, and dismissed the petition. The plaintiff excepted. The petition alleged, in substance, as follows: There is pending in the city court of Bainbridge a suit on a note brought by D. D. Stults against J. C. McCaskill & Company, a firm composed of J. C. McCaskill and A. Peacock. At the time the note was executed Peacock was a silent member of the firm. Shortly thereafter, and before the note fell due, lie retired from the firm, selling all of his interest therein to McCaskill, who assumed all indebtedness. Peacock had no knowledge of the execution of the note, and did not know of its existence until about seven years thereafter, when payment was demanded of him. When the note became due Stults and McCaskill by agreement extended it upon payment of the interest, without the knowledge or consent of Peacock, who was then not a member of the firm, the dissolution of which had been given general publicity. The note was thus extended from year to year without the knowledge or consent of Peacock. When he purchased the note Stults did not know that Peacock was a member of the firm, nor did he extend the due date upon any faith in Peacock, but relied solely upon McCaskill. About a year before suit was brought upon the note McCaskill became insolvent, and was adjudicated a bankrupt. Stults did not prove the note in bankruptcy, upon agreement between him and MeCaskill that if he would not prove it MeCaskill would pay it. Stults, by reason of his laches in failing to notify Peacock as to the note, and its extension from time to time for about seven years without the knowledge of Peacock, is estopped from claiming judgment against him. For four or five years of this time MeCaskill was a man of large wealth; and had Stults during that time called upon Peacock to pay the note, he could have collected it from MeCaskill. Peacock’s defense is equitable, and does not arise by virtue of a contract, but is the result of laches on the part of Stults; and the city court of Bainbridge is without jurisdiction. Held,- that all the rights of the plaintiff as set out in the petition can be lawfully urged as a defense to the suit on the note in the city court of .Bainbridge; and therefore it was not error to dissolve the restraining order, and to dismiss the petition for injunction.

No. 94. January 18, 1918.

Petition for injunction. Before Judge Harrell. Decatur superior court. January 6, 1917.

T. 8. Hawes, for plaintiff. J. C. Hale and M. E. O’Neal, for defendant.

Judgment affirmed.

All the Justices concur, except Fish, G. J., absent.