Shelton & Co. v. Ellis , 70 Ga. 297 ( 1883 )

Hall, Justice.

There is no question made here as to the propriety of' the orders passed by his honor, the presiding judge, if the case made by the bill entitles the complainants to the relief prayed. Upon the question made' there was a conflict of-evidence; there was no abuse of discretion,, if the law ' authorized the interposition of the judge. The order ap--' pointing the receiver and directing the injunction carefully preserved the rights of all the parties to the final hearing of the cause. . ■ '

The first and only question^ made which we sh^ll consider and determine; is whether appropriate relief cán be granted by a court of equity, in a ease where thfere has been a mistake on one si-rle, and it i's alleged that a fraudulent advantage .has been knowingl-y'taken of this mistake by the opposite party, to his gain and to the serious detriment and injury o'f the party making the mistake. The question is thus broadly stated, to meet the views presented by counsel in the case! -■ ' "■

In Wyche et al. vs. Greene, 26 Ga., 415, this court held! that what is a mistake on one _ side- and' a frau j. .on the other is as much the subject of Correction as if‘ it were 'a mistake on both sides, and in delivering- thq ppinioh of the court, Benriing, J., (at p. 122) said: “The court’s charge that a mistake, to be the subject of correction, must be a mistake in which all the parties to the contráctparticipate,, was too absolute. If one of the-parties to a^ontract is> mistaken in a matter, and the otilare know’ that hejs ana do not apprise him of it, yet the mistake, thougEPnot one on their part, is the subject of correction. ’ The case be-/ comes one in which there is a mistake in one of the par-. ties to the contract and a ffiaud in the others. Such a case. is even more readily the subject of relief, at his, instance, than is a case in which there is nothing but a mistake, although that be a mist^e extending -to all the parties.” There is nothing that weure aware of, either in the Code or any subsequent decision of this court, modifying the law as here declared. On the other hand, we think there is much confirming the view here taken. Compare with this Code §§3117, 3119 to 3126, both inclusive, and 3180. The conditions upon which relief will be granted or denied must, under the sections of the Code and the cases cited under them, depend in large measure upon the circumstances of each particular case, and upon all the facts developed, which should be passed upon by the jury at the final hearing, and ought not to be too closely scrutinized or evenly balanced in these preliminary proceedings. All that the judge decides at that stage of the cause is that there is enough developed to carry the case to the jury, whose exclusive province it is to determine the force and effect of facts as applied to the law given them in charge by the court. This is all that the judge' has undertaken in this case.

Judgment affirmed.