Burell v. Pirkle , 156 Ga. 398 ( 1923 )

Hill, J.

(After stating the foregoing facts.) We are of the opinion that this case falls 'within the ruling in Everett v. Tabor, 127 Ga. 103 (56 S. E. 123, 119 Am. St. R. 324). It was there held: “A defendant in an equitable cause, wherein specific equitable relief is prayed because of his alleged fraud, can not by the- consummation of the fraud pending suit, whereby the particular relief prayed can not be decreed, deprive the court of its jurisdiction of the case; but the court will give such other relief as may be appropriate to the changed status.” In delivering the opinion of the court, which was by a full bench of six Justices, Mr. Justice Evans, said: “ The original petition was for relief against the enforcement of a judgment which had been regularly rendered against the losing party, who had a meritorious defense but was prevented by the fraud of the other party from entering an appeal. If the allegations therein were true, the petitioner was entitled to the relief prayed. Everett v. Tabor, [119 Ga. 128, 46 S. E. 72], supra. So the real question for determination now is, did the amendment introduce a different cause of action from that alleged in the original petition? The amendment set up facts transpiring after the filing of the suit, and was in the nature of a supplemental bill. It appears from the amendment that the plaintiff can not ■now be afforded the relief of injunction, since the executions have been paid. The amendment discloses that payment of the execu-’ tions was not made voluntarily, but in order to release the plaintiff’s property from seizure under the executions, and to prevent its sale by the constable. Civil Code, § 3723; First National Bank v. Americus, 68 Ga. 119, 123 [45 Am. R. 476]. UndeT the English equity practice, matters transpiring after the filing of a bill in equity were available by way of a supplemental bill; under our procedure, no supplemental petition need be filed, but all such matters may be set up by way of amendment. Civil Code, § 4969. It is well settled that if, upon the final hearing of a petition for injunction, it appears that the equitable relief prayed for can not be granted, because of a change in the status, brought about since the filing of the action, the plaintiff may be awarded damages in lieu of the equitable relief sought. Under our system of pleading, which allows a joinder of equitable and legal causes in the same action, a plaintiff may abandon his equitable cause and insist on his purely legal remedy. In such a case, where he elects to recover damages, ordinarily lie is limited to the damages flowing from acts committed prior to the suit, and can not by amendment bring into the case occurrences subsequent to the suit as a basis for damages. This general rule is not applicable to a cause of action purely equitable in its nature, where the damages claimed from happenings subsequent to the filing of the petition can not be recovered independently of the original equity in the petition, and which are dependent upon and consequential from such equity. The suitor will not be cast out of a court of equity by conduct of the defendant subsequent to the filing of the suit which renders it impossible to grant the relief originally prayed; but in an appropriate case the court will decree damages resulting from such conduct which can not be recovered independently of the facts pleaded in the original suit. Ivey v. R. Co., 84 Ga. 536 [11 S. E. 128] ; Illges v. Dexter, 73 Ga. 363. When the defendant Tabor was successful in defeating the grant of a temporary injunction, he had his election to either press his executions to sale or to await the final determination of the controversy between himself and the plaintiff. If the plaintiff had been unable or had refused to pay the executions and a sale of his'property was had thereunder, he would still have been entitled to press his case before a jury; and if he succeeded in establishing the fraud as alleged, he could have recovered such damages as resulted from the consummation of the fraud in subjecting his property to seizure and sale. The enforced payment of the executions by the plaintiff fixed the measure of his damages, in,the event he established,his right to prevail in the pending suit. This view is borne out by what is said by McCay, J., in Sharpe v. Kennedy, 51 Ga. 263. The matters set up in the amendment were germane to the cause of action alleged in the original petition, and the court erred in dismissing the action.”

In the instant case the plaintiff in his original petition alleged that he had rented the farm described in the petition from one of the defendants for the year 1930, and that the other defendant had threatened to move into the dwelling-house occupied by the plaintiff under the rent contract, and to break the locks on the doors of the residence for that purpose, if necessary. He also moved some of his goods into the outbuildings on the premises, which it was alleged in the petition the plaintiff was entitled to the possession and use of. He prayed for injunction against Ihis alleged ouster, and for damages which he had sustained. As against a general demurrer we are of the opinion that the allegations set out in the original petition and the prayer for relief were sufficient. There was no special demurrer to the allegation for damages in the original petition. The plaintiff amended his petition by alleging that the defendants did oust him from his possession, and that in consequence he suffered damages as alleged in the amendment. No question was raised of the court’s jurisdiction of the cause of action as set out in the original petition; and we are of the opinion that the defendants could not, by their own act in wrongfully ousting the plaintiff from possession of the rented premises, deprive the court of its jurisdiction of the case, but the court having-original jurisdiction will retain it and give such other relief to the plaintiff as may be appropriate to the changed status. The amendment to the petition is not demurrable on the ground that it sets up a new cause of action. The facts as alleged in the petition must, on demurrer, be taken as true; and so taking them the petition as amended sets forth a cause of action, and the trial court erred in dismissing it on demurrer.

Judgment reversed.

All the Justices concur.