Lewis v. Leak , 9 Ga. 95 ( 1850 )

By the Court.

Lumpkin J.

delivering the opinion

We do not deem it necessary or proper to notice all the questions made in the argument of this case, or whether or not there was equity in complainant’s bill — whether he had not a full, complete and adequate remedy at law — whether, having failed to set up by way of defence to the suit at law, on his note, the matters contained in this bill, he is not foreclosed by the judgment rendered against him in favor of Allen — whether or not Lewis, the complainant, is not compelled to pursue, to every available extent, his remedy at Law against Leak, before he can invoke the aid of Chancery. It is due to candor, however, to state, that had these points been made in the record, we should have found no difficulty in sustaining this proceeding.

But all these matters are waived by the pleadings. The parties have taken issue upon two questions only, namely : First, whether, upon a motion to dissolve an injunction in a case like this, it is competent for the complainant to introduce ex parte affidavits to support the bill and to contradict the answer; and Secondly, whether the answer of Allen, the defendant enjoined, has denied all the equity in the bill upon which the injunction was granted.

[1.] The general rule is against the admission of affidavits in thebe babes, and the instances in which they are admitted, are exceptions, as in waste and analagous cases resting on the same principle where irreparable mischief might ensue. We think the application for their admission was properly denied in the case before us. Berkely vs. Brymer, 9 Vesey, 355.

[2.] We recognize the doctrine contended for by defendant’s counsel, that on a motion to dissolve an injunction upon answer, exceptions filed are no objection to 'the motion, unless they affect the answer in points relating to the grounds of the injunction. It becomes.necessary, therefore, to look into the exceptions, and see whether they apply to the answer in those points upon which the injunction rests. If they so apply, it'furnishes an answer to the motion.

[3.] The presiding Judge, before whom the first motion was made to dissolve the injunction, seemed to think that the equity, upon which the injunction was granted, rested on the promise and undertaking, on the part both of Allen and Leak, that the claim of Lewis against Leak should be paid out of the surplus effects in Allen’s hands of the firm property, after the settlement of the partnership of Allen & Leak. If this view of the complainants’ equity was correct, then the exceptions which were filed to the amended answer were frivolous, and the injunction should have been dissolved — for this allegation is fully met and broadly denied by Allen, so far as he is concerned.

The equity of the complainant consists in this : that the debt which he owes Allen, and which he seeks to have satisfied out of the share of Leak in the surplus in Allen’s hands, after the settlement of'the partnership, in discharge of Leak’s indebtedness to him, was contracted for and on account of the partnership property of Allen & Leak, and that Leak, his debtor, is utterly insolvent, and has no other means of paying this demand, and that he is not only willing but desirous that it should be satisfied out of this fund. Wright vs. Bell, Daniels’ Rep. 95. Edmoston vs. Fide, 1 Paige, 641.

This being the case, it is obvious that Lewis is entitled to a full discovery from- Allen as to the partnership property in his hands, and the residue to be divided between Leak and himself, after the settlement fif the firm; Has he got this ? One of the main items of joint stock property was lot No. 4, in square 33, in the city of Griffin. It was for the purchase of a part of this lot, that Lewis gave the note to Allen, which is the subject matter of this litigation. The bill alleges, that Allen has received between seven and eight thousand dollars as the proceeds of this real estate. Allen, .after admitting in his original answer, that he took this property at the dissolution of the firm, and agreed to manage it in such manner as would make it pay the purchase money still due upon it, and other debts of the concern, as far as it would go, refuses to make any disclosures, in his amended answer, as to the proceeds, for the reason that, at the dissolution, he acquired the individual title to the property, and is, consequently, protected from other or farther answer respecting it.

Here it is most obvious, that so far from denying the equity of the bill in this particular, that enough is admitted, except as to the value, &c. to entitle the complainant to a decree. What if he did take an individual title at the dissolution ! That will not protect him from accounting for the proceeds, according to his own admissions; for, inasmuch as these proceeds were to be applied to the extinguishment of the firm debts, it would, of course, leave just that much more to be finally divided between the copartners.

Again, the bill charges, that after paying off all the debts of the firm, there still remained in the hands of Allen, to be divided between Leak and himself, $10,762 25, realized by him out of the partnership effects. Now, Lewis is certainly entitled to know what the true balance is — in other words, to a full account oí the partnership as settled by Allen — the assets received, and from whom — the amount disbursed, and to whom.

It is true, that Allen seeks to excuse himself from answering more fully touching these matters, upon tire ground, that in consideration of the individual appropriation which he made of the real estate, he agreed to pay certain specified debts, and released Leak from farther liability thereon.' But this part of his answer is not responsive to the bill, but sets up affirmative allegations in opposition to, or in avoidance of the complainant’s demand, and is of no avail in respect to such allegations, either on a motion to dissolve the injunction, or as testimony on the trial; on the contrary being replied to, the deféndant will be just as much bound to establish them by independent proof, as the complainant is to sustain his bill. 4 Paige, 23. 8 Pick. 113. 2 Johns. Ch. R. 89. 15 Monroe, 125. 2 Stewart, 280. 15 Vermont, 93. 3 Mason, 378. 2 Bibb, 36. 2 McCord’s Ch. R. 156. 12 Peters, 178. 6 Monroe, 620. 4 Hen. & Munf. 511. 1 Munf. 373. 1 Gill. Johns. 272. 10 Yerg. 105. 5 Dana, 263. 2 Sumner, 487. Story’s Eq. Pl. §849, a. 1 Ired. Eq. 332. Dev. Eq. 364. Dessau. 588. 1 Wash. 224.

Let the judgment be reversed.