Gormley v. Slicer , 178 Ga. 85 ( 1933 )

Atkinson, J.

1. The facts show essentially an action at law for damages based on tort, without any ground for equitable relief. Civil Code, § 5128; City of Albany v. Cameron & Barkley Co., 121 Ga. 794 (49 S. E. 798) ; Burress v. Montgomery, 148 Ga. 548(3) (97 S. E. 538) ; Taylor Lumber Co. v. Clark Lumber Co., 159 Ga. 393 (125 S. E. 844); McKenzie Trust Co. v. Bullard, 159 Ga. 884 (127 S. E. 277) ; Mulherin v. Neely, 165 Ga. 113 (139 S. E. 820) ; Bernstein v. Fagelson, 166 Ga. 281 (142 S. E. 862) ; Shannon v. Mobley, 166 Ga. 430(6) (143 S. E. 582) ; Long v. Lynch Enterprise Finance Cor., 166 Ga. 497 (143 S. E. 579) ; Mobley v. Shannon, 169 Ga. 876 (152 S. E. 255) ; Mobley v. Faircloth, 174 Ga. 808 (164 S. E. 195, 83 A. L. R. 1201) ; Higgins v. Tefft, 38 N. Y. Supp. 716 (4 App. Div. 62); O’Brien v. Fitzgerald, 143 N. Y. 377 (38 N. E. 371) ; Dykman v. Keeney, 154 N. Y. 483 (48 N. E. 894); 21 C. J. 59, § 36. The first question propounded by the Court of Appeals is answered in the negative.

2. The fact that it was alleged in the petition and in the motion to refer the case to the auditor and in the motion to recommit the case to the auditor that the ease was one in equity, and that the judge in deciding the case considered that it was in equity and it was so recited in the bill of exceptions, considered in connection with the other facts set forth in the second question propounded by the Court of Appeals, did not make the ease one in equity. The second question propounded by the Court of Appeals is answered in the negative.

3. The action, being of the character indicated, is not one in which the Supreme Court has jurisdiction of the writ of error on the basis that the action was one in equity. The third question propounded by the Court of Appeals is answered in the negative.

4. The fourth question propounded by the Court of Appeals is answered in the affirmative. Shannon v. Mobley, 166 Ga. 430(4).

5. The fifth question propounded by the Court of Appeals is answered in the affirmative. Civil Code, § 5139; Southern Pine Co. v. Dickey, 136 Ga. 662 (71 S. E. 1110) ; Sattes-Weimer Lumber Co. v. Bowen, 146 Ga. 156 (90 S. E. 861).

All the Justices concur, except Hill, J., absent because of illness. C. N. Davie and J. F. Kemp, for plaintiff. Alston, Alston, Foster & Moise, Philip Weltner, John W. Crenshaw, Franlc A. Hooper, Pearce Matthews, and Paxil S. Fthexddge & Sons, for defendants.