Payne v. Royal Indemnity Co. , 1929 Ga. LEXIS 73 ( 1929 )

Russell, C. J.,

dissenting. In preparing the foregoing syllabus in behalf of the majority of the court I have given expression to their views and cited authority in support of their opinion. Speaking for myself, for the reason often heretofore expressed, I am of the opinion that the court erred in sustaining the demurrer and dismissing the petition. By the passage of the uniform procedure act of 1887 (Code of 1910, § 5406) courts of chancery in this State were abolished, and all of their powers were conferred upon the superior courts. These were empowered to apply either equitable or common-law remedies. The main purpose of the passage of that act was, by abolishing all distinctions between actions at common law and proceedings in equity, to give the petitioner in the prosecution of his action the right to choose whether he would avail himself of the remedy afforded by courts of equity or follow the common law. Consequently, in my opinion, the fact that a petitioner may have an adequate remedy at common law is no bar to his proceeding for the same purposes in the superior court, which is now our only court of equity, and that he may have an adequate remedy at law is no bar to his asserting the right to which he would be entitled at law through the medium of an equitable proceeding.