Watkins v. Woodbery , 148 Ga. 249 ( 1918 )

Gilbert, J.

Woodbery et al. brought suit against Watkins, alleging that the plaintiffs, together with the defendant, were joint makers of certain notes; that the plaintiffs, together with all of the other makers, except Watkins, had paid off the notes, while Watkins had paid nothing, and that by reason of these facts Watkins was liable to plaintiffs in designated sums by way of reimbursement and contribution. The prayers were for judgment against Watkins for the respective amounts alleged to be due, and for process. Watkins admitted signing the notes, but denied liability thereon, alleging that he had never received any consideration; and alleged that it was understood, at the time he signed the notes, that he was not to be liable/ and that he was a mere accommodation indorser; wherefore he prayed “the judgment of the court.”

The jurisdiction of this court depends upon whether or not this is a suit in equity. The plaintiffs’ case is based upon § 4588 of the Civil Code of 1910, which concludes with the words, “whenever the circumstances are such that an action at law will not give a complete remedy, equity may entertain jurisdiction.” Undoubtedly the doctrine of contribution rests upon the equitable principle that when the parties stand in tequali jure the law requires equality, which is equity. Notwithstanding this fact, and also that the right of contribution was first recognized and enforced in courts of equity, subsequently the courts of law took and still exercise jurisdiction on the ground of an implied contract arising from the equitable obligation. Dent v. King, 1 Ga. 200 (44 Am. D. 638); Neel v. Morris, 73 Ga. 406; Hull v. Myers, 90 Ga. 674 (4), 681 (16 S. E. 653); Sherling v. Long, 122 Ga. 797, 799 (50 S. E. 935); Hall v. Harris, 6 Ga. App. 822 (65 S. E. 1086); Train v. Emerson, 141 Ga. 95 (80 S. E. 554, 49 L. R. A. (N. S.) 950); 13 C. J. 821, 832; 6 R. C. L. 1036; 5 Standard Ene. Proc. 498. It will be observed that the code section cited above contemplates the enforcement of the law of contribution by an action at law, and provides for equitable jurisdiction only when an action at law does not furnish a complete remedy. There are no allegations, upon the part of either the plaintiff or the defendant, requiring an accounting or any other equitable relief. Our conclusion, therefore, is that this is not a suit in equity and that this court is without jurisdiction to decide the case. It is therefore ordered that the same be transferred to the Court of Appeals, which court has jurisdiction.

All the Justices concur.