Shoup v. Elliott , 192 Ga. 213 ( 1941 )

1. It was ruled in Oliver-McDonald Co. v. Swift Co., 157 Ga. 102 (120 S.E. 543), as follows: "Where a party to a case in the trial court, after the motion for new trial was overruled, sued out a writ of error to the Court of Appeals, and the defendant in error filed a cross-bill of exceptions, in which were raised certain constitutional questions of which this court alone has jurisdiction, rendering it necessary that the cross-bill of exceptions should be transmitted to this court, the main bill of exceptions should also be transmitted to this court, which court will retain the entire case and decide the questions in both bills of exceptions, or, if the judgment of the court below on the main bill of exceptions is affirmed, dismiss the cross-bill."

2. In Harrell v. Parker, 186 Ga. 760 (198 S.E. 776), it was determined: "Where an equitable petition was amended by striking the equitable features and converting it into an action at law for damages, but the amendment was allowed over objection, and this ruling was duly assigned as error, so that the propriety of the amendment is one of the matters for determination on appeal, the writ of error presents an equity case within the jurisdiction of the Supreme Court."

3. Upon application of the foregoing principles to the question propounded by the Court of Appeals, it is held that the case there referred to is one in equity, of which the Supreme Court and not the Court of Appeals has jurisdiction under the constitution of this State.

Answer in affirmative. All the Justicesconcur.

No. 13605. MAY 17, 1941. The Court of Appeals (in Cases 28544, 28562) propounded the following question: "Where suit is brought against a husband and wife to recover on a note, and equitable relief is sought, such as an injunction against the husband from disposing of his property in fraud of creditors, and for appointment of a receiver, and by amendment the setting aside of a year's support obtained in the court of ordinary by the defendant wife out of the estate of the defendant husband, who had died after the commencement of the suit, is sought on the ground of fraud, etc., and verdict and judgment are rendered for the plaintiff on the note, and no equitable relief is granted, is the case as presented in this court on a main bill of exceptions by the defendant wife excepting to the overruling of her motion for new trial, assigning error on the verdict and judgment against her, and on a so-called cross-bill of exceptions presented by the plaintiff in which she excepts to the sustaining of a demurrer of the defendant wife to so much of the amended petition as seeks equitable relief in a cancellation and an invalidation of the year's support, a case in equity of which the Supreme Court and not the Court of Appeals has jurisdiction under the constitution of this State?"