Davis v. Metropolitan Life Insurance , 161 Ga. 568 ( 1926 )

Gilbert, J.

The first, second, and third headnotes do not require elaboration.

In considering such a case the question might arise as to whether a court of equity has jurisdiction of a suit seeking to cancel a life-insurance policy on the ground that it was obtained by fraud. The case was tried without written demurrer or other motion to test the sufficiency of the petition. Our Code (1910), § 4538, provides: “Equity will not take cognizance of a plain legal right, where an adequate and complete remedy is provided by law.” We do not decide this question, because it is not made in the case. We will, however, make reference to the following cases, where the subject is elaborately discussed and many authorities cited, and wherein it is said that “the overwhelming weight of authority sustains the rule . . that a court of equity will not, after the loss insured against has occurred, cancel a policy of insurance and enjoin proceedings at law thereon, merely upon the ground that the policy was procured through the fraud of the insured, since such a defense is fully available at law.” Woelfle v. The Sailors, 12 L. R. A. (N. S.) 881; Pacific Mutual Life Insurance Co. v. Glaser, 45 L. R. A. (N. S.) 222 (3); Banker’s Reserve Life Co. v. Omberson, 48 L. R. A. (N. S.) 265. Elaborate annotations will be found in connection with each of these cases.

Alter verdict and judgment in this case the losing party filed a motion for a new trial, which was overruled, and the writ of error is to that judgment. It is well settled that there are a number of proceedings that the losing party might have sued out in order to test the question of the sufficiency of the petition to set out a cause of action, even after verdict and judgment. Kelly v. Strouse, 116 Ga. 872, 888 (43 S. E. 280). However, in the present case the plaintiff in error did not elect to pursue any of the available remedies. In the Kelly case, just cited, Mr. Justice Cobb said: “In Savannah, Florida & Western Ry. Co. v. Ladson, 114 Ga. 762, Third National Bank v. Ry. Co., 114 Ga. 890, and Pittsburgh Co. v. Smith, 115 Ga. 764, this court affirmed judgments in favor of plaintiffs, and refused to consider the question as to whether, under the facts alleged in the different petitions, the plaintiffs were under the law entitled to recover. An examination of these cases will show that they were before this court on exceptions to the overruling of motions for new trials, and everything said in any of them must be read in the light of this controlling fact. In no work on pleading that we have examined have we been able to find enumerated or referred to as a ground for a new trial that the plaintiff’s declaration, count, or petition, as the case may be, is fatally defective. See 4 Chitty’s Gen. Pr. 29 et seq.; 2 Tidd’s Pr. (3d Am. ed.) *906 et seq.; 3 Estee’s Pl. § 4847 et seq.; Ship. Com. Law PL 113-116; Andrews’ Steph. Pl. (2d ed.) 228; 4 Minor’s Inst. pt. 1, mar. p. 756. It never has been at any place where -the common law prevails, so far as we are now advised, the office of a motion for a new trial to call in question the legal sufficiency of the pleadings of the plaintiff.”

Judgment affirmed.

All the Justices concur, except Bussell, C. J., dissenting.