Eller v. McMillan , 174 Ga. 729 ( 1932 )

Gilbert, J.,

dissenting. The only prayers in the petition, other than for process, are “that petitioner have judgment for the amounts set forth in his petition, together with interest,” and “that petitioner have such other and further relief as he may be entitled to in the premises.” Neither of these, construed in connection with the petition, seeks any equitable relief. The only relief sought is for a money judgment for $500 and interest, the reasonable market value of the house and lot traded to McMillan, which trade was evidenced by transfer and assignment of a bond for title by which petitioner held his property. The petition alleges that on rescission McMillan did not reassign the bond for title, and sold the property to an innocent purchaser, which constituted a breach of contract to rescind. All other allegations merely serve to show a complete history of the transaction. Petitioner is not seeking to recover the property, or to establish any equitable rights, notwithstanding the allegations with reference to “accounting” and being “remediless at common law,” and in his amendment “that by virtue of the rescission contract that the defendant holds said house and lot or the value thereof as a trust fund, and now holds the same in trust for the benefit of plaintiff.” Burress v. Montgomery, 148 Ga. 548 (97 S. E. 538). The petition and the prayer in McMillan v. Benfield, supra, differed from this petition. In the former the prayer was construed to ásk alternative relief, — specific performance or money judgment. For that reason this court took jurisdiction. Heaclnote 4 (a) of that case had reference to that case. In this case petitioner did not make a case for equity jurisdiction. This court being without jurisdiction, the case should be transferred to the Court of Appeals, which has jurisdiction. Code, § 6502.