Horton v. Continental Casualty Company , 199 Ga. 220 ( 1945 )

This being an action at law by one of two defendants for the benefit of an insurer who had paid for one of the defendants all of the judgment which had been rendered jointly against him and another in a tort action, seeking contribution against the other defendant who had paid nothing, and the prayer being for contribution and for such other relief as to the court might seem meet and just, but the pleadings containing no allegation requiring an accounting or other equitable relief, so as to confer jurisdiction upon the Supreme Court, this court is without jurisdiction, and therefore the case is transferred to the Court of Appeals.

No. 15132. APRIL 4, 1945. This is a suit for contribution, based on the payment of a judgment rendered against joint tort-feasors. Johnson Company Inc., for the use of Continental Casualty Company, filed in Fulton superior court against W. R. Horton, a petition which as amended alleged substantially the following: In a former suit Mrs. Thelma Medlock, as next friend of John Medlock, sued both Horton and Johnson Company for damages on account of the injury to her son by alleged joint acts of negligence of the two defendants. She recovered against both jointly. Continental Casualty Company, as insurers of Johnson Company, paid the entire amount of the judgment, and brought the present suit against Horton, who was not covered by the insurance and did not contribute to the payment, to recover contribution. The petition prayed for process, for judgment for half of the amount paid in the above circumstances, and for such other relief as to the court might seem meet and just.

A demurrer interposed by Horton, on the grounds, (a) that the petition failed to set forth a cause of action, and (b) that the action contained a misjoinder of parties plaintiff, was overruled; and, so far as disclosed by the record, there was no exception to this ruling. Subsequently counsel for the defendant made a motion to dismiss the petition on the ground that no cause of action at law was set forth. Exceptions pendente lite were filed complaining because the court failed to pass upon the motion to dismiss. The defendant also filed an answer denying material allegations of the petition.

When the case came on for trial by consent before the judge without the intervention of a jury, upon an agreed statement of facts, a judgment for the amount sued for was rendered in favor of the plaintiff. The defendant filed a motion for new trial on the usual general grounds, which was overruled, and he excepted. Error was assigned in the bill of exceptions on the exceptions pendente lite.

While the case was pending in the Supreme Court, Johnson Company filed a motion asking that its name be stricken as a party defendant in error. Whether this court has jurisdiction of the case within the meaning of the constitutional provision contained in the Code, § 2-3005, depends on whether or not this is an equity case. "While the doctrine of contribution originated in courts of equity, it was subsequently adopted by courts of law and is now universally applied therein." 13 Am. Jur. 8, § 5. See also 18 C. J. S. 21, § 13. This principle was recognized in Watkins v. Woodbery,148 Ga. 249 (96 S.E. 338), where several joint makers of promissory notes sought contribution against one alleged to be jointly liable. In that case, which was transferred to the Court of Appeals, this court said: "The plaintiffs' case is based upon [Code, § 37-303], 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 aequali 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. [Citations.] 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." Southern Railway Co. v.Rome, 179 Ga. 449 (176 S.E. 7), involving contribution, based on the payment of a judgment that had been rendered against joint tort-feasors, came to the Supreme Court on the grant of a certiorari to the Court of Appeals. While the instant case contains a prayer "for such other and further relief as to the court may seem meet and just," such prayer can not, unaided, make an equity case. Atlanta Finance Co. v. Fitzgerald, 189 Ga. 121 (5 S.E.2d 242); White v. Georgia Railroad Bank TrustCo., 197 Ga. 238 (28 S.E.2d 858); Martin v. Home OwnersLoan Corporation, 198 Ga. 288 (31 S.E.2d 407.) There are no allegations in the pleadings requiring an accounting or any other equitable relief, so as to confer jurisdiction upon the Supreme Court, as was true in Autry v. Southern Railway Company,167 Ga. 136 (144 S.E. 741); Davis v. Perkins, 178 Ga. 195 (172 S.E. 562); Snyder v. Elkan, 187 Ga. 164 (199 S.E. 891); Eidson v. Maddox, 195 Ga. 641 (24 S.E.2d 895), and similar cases. It follows that this is not a suit in equity, and that this court is without jurisdiction to decide the case. Therefore, it is ordered that the same be transferred to the Court of Appeals, which has jurisdiction.

Transferred to the Court of Appeals. All the Justicesconcur.