Doyle v. Lyons , 31 Ga. 495 ( 1860 )

By the Court. —

Jenkins, J.,

delivering the opinion.

. This case is somewhat peculiar, and must be decided upon its own distinctive features. Doyle, the plaintiff in error, commenced his common law action in the Superior Court of Thomas county, against the defendant, John P. Eyons, on a promissory note. Pending the action, the defendant, Eyons, filed in the same Court a bill in equity, setting up certain equitable defences against the recovery of the amount of the note, averring that he was remediless at law, and praying injunction of the common law action, and relief under the bill. The injunction was granted. Doyle answered the bill, and moved a dissolution of the injunction, which was ordered-The common law action then being on the appeal, was in order for trial. The counsel for plaintiff and defendant entered into the following consent, in writing, which appears in the record, viz.:

^'vs' John P. Eyons.

Debt, in Thomas Superior- Court, on apPeaL Term, 1857.

It is agreed by counsel on both sides, that upon the trial of the case, the bill filed by defendant to enjoin it, and for discovery and relief, be tried at the same time with it.

(Signed)

Burch & McEEndon, plaintiff’s attorneys.

Augustus W. Hanseit,, defendant’s attorney.

The parties went to trial, carrying both causes before a special jury, who rendered a verdict. The defendant in the common law action (Eyons) being dissatisfied with the verdict, moved for a new trial, on several grounds, and a new trial was ordered. At the June Term, i860, of the same Court, Eyons (defendant at law) amended his bill in equity, setting forth a new ground of equitable defence against the note, and moved for an injunction of the common law action. The presiding Judge ordered an injunction, after the plaintiff shall have taken a verdict, for the amount of the notep in the common law action, until the defendant in equity shall have answered the amended bill, thereby securing to the plaintiff at law a lien upon the defendant’s property, and, at the same time, affording the latter an opportunity to assert his equities. This mode of procedure seems to have been devised in the discretion of the presiding Judge, overlooking or treating as irregular the consent of parties, to try both cases on one issue. The verdict in the common law action was accordingly taken, and that has not been excepted to, or in any way impunged. But the plaintiff (Doyle) excepts to the order of the Court, enjoining further proceeding in the common law action, after having obtained his judgment on the note. We see no reason why the consent to try both actions together is not as applicable to the cases - after new trial granted as before, and we have known practice to sustain such a consent. Inasmuch, then, as the discretion exercised by the presiding Judge has deprived the defendant at law of the benefit of this consent, and would injuriously subject him to the payment of the money for which judgment has gone against him at law, in advance of an answer to his amended bill, without passing upon the merits of the amendment, we affirm the judgment.

JUDGMENT.

Whereupon, it is considered and adjudged (without passing upon -the merits of the last amendments to the bill in equity) by the Court below, that the judgment of the Court below be affirmed, on the ground that the injunction granted in the Court below was part and parcel of the direction given by order of that Court to the cases pending at law and in equity between the parties, and that the dissolution of it, leaving the remainder of the order of force, would do manifest injustice to the complainant.