Newton Manufacturing Co. v. White , 47 Ga. 400 ( 1872 )

Montgomery, Judge.

1. Affidavits of illegality are peculiar to our practice, and lie, generally, when under the practice as it existed before the law allowing them, it would have been necessary to file a bill. The sheriff may receive them and return them to the Court having jurisdiction to try the issues made, or if he choose to reject them on his own responsibility, he can, and not unfrequentlv does do so. In the present case, he elected to reject the affidavit tendered. This left the defendant in fi. fa. to choose which one of his remaining remedies he would rely on: an injunction, or an action against the sheriff. He chose the former, and the Judge granted his application. Had the Court jurisdiction at that time ? It is not disputed. Could the defendant in the equity cause, by his own act, deprive the Court of a jurisdiction once acquired? No case has been cited where such a thing was ever allowed; and yet that is what is here attempted. After the granting of the injunction, the sheriff returned the illegality papers, which seem to have remained in his hands, into Court, and then a motion is made to dissolve the injunction on the ground that a Court of law has now gotten hold of the case. Proceedings are often stayed at law because equity has acquired jurisdiction; but the converse of the proposition certainly has no precedent to sanction it. Much less does the fact that a law Court has acquired jurisdiction, require an equity Court, whose jurisdiction has been rightfully obtained, to dismiss the cause from its docket. “ It cannot be left to Courts of law to enlarge or to restrain the powers of Courts of equity at their pleasure:” 1 Story’s E. J., sec. 64, (i.)

It is sometimes true in England that equity baving»acquired jurisdiction solely for the pwposes of discovery, will not always retain it to grant relief — though this is rare. In America a Court of equity will never refuse to retain its jurisdiction of a case, once acquired for discovery, unless in those States where the machinery of the Court is such (as for want of a jury) as to prevent a thorough investigation of the issues made; and even in those States the more usual practice is to send the issues of fact to 'a Law Court to investigate and report: 1 Story’s Eq. Juris., 65 to 75; sec. 456. (No such rule prevails even in England, where the jurisdiction attaches for purposes of injunction.) In the usual course of things, when a Court of chancery is applied to, it either has jurisdiction or it has not. If it has, nothing a defendant can do can defeat the jurisdiction. Here it would be especially inequitable to permit him to do so, and thus throw the costs of the bill, which he compelled the complainant to file, upon the latter. We think the principle fairly applies to such a case, that equity having acquired jurisdiction will retain it, for all the purposes of the case. Indeed, the general rule is that, if originally, the jurisdiction has properly attached in equity, in any case, that jurisdiction is not changed or obliterated by the Courts of law now entertaining jurisdiction in such cases where they formerly rejected it: 1 Story’s Eq. J., sec., 64, (i.) This Court has held that where the Legislature gives a specific remedy at law, equity jurisdiction ceases: Osborne vs. Ordinary, 17 Georgia, 123; see 3 Georgia, 137; 2 Georgia, 151. So far, the rule then must be considered as changed in Georgia, but no further. If the party injured has, at the inception of his suit, a complete remedy at law, under the ruling above referred to, he must pursue it. In this case he did so until it proved? by act of one of the opposite parties, unavailing. Even in cases in which Courts of law and equity have concurrent jurisdiction, this Court has decided that the Court first acquiring will retain the jurisdiction: Griffin vs. Sketoe, 30 Georgia, 305; and so now the Code provides section 3041. A fo7'tiori, where in the inception of the case, equity alone can afford a remedy, will it retain the jurisdiction once acquired.

2. The injunction once 'granted, it should not have been dissolved even in term, without notice to the opposite party. Under the English practice an order nisi is granted: 3 Danl. Ch. Pr., 1825. And if our own rule of Court (Rule 46) and whole spirit of our law upon the subject do not require notice in term time, the English practice is of force: Code, 3045. We think the better practice is to require the motion to be put upon the motion docket, and reasonable notice to be given to defendant, the.Court to be the judge of what, under the circumstances, is reasonable notice.

3. We see no difference between a loan of cotton and a loan of money, so far as payment of taxes is concerned. It is a debt owing to the lender, and he should return it at its market value. A promissory note payable in specifics is none the less a promissory note, and a debt due by the maker because so payable: Code, 2732. Why, then, should not the holder pay taxes upon it ? The holder, if forced to sue on such a note, recovers the value of the articles at the time the note falls due, not at the time of demand for payment: Ibid. Hence, no demand is necessary to create the debt in such a case. If money be loaned on call, is it not a debt on which taxes must be paid? What difference can it make if it be cotton so loaned? We see none. If this be so, then the plaintiff should attach the affidavit of payment of taxes to the execution before he should be allowed to proceed to levy and sale.

Judgment reversed.

McCay, Judge, concurred, but furnished no opinion.