Lawrence v. Patterson

Gilbert, J.

1. The demurrer to the plaintiff’s petition on the ground of misjoinder of parties and causes of action was properly sustained. Ferrell v. Greenway, 157 Ga. 535 (122 S. E. 198) ; Atlanta Finance Co. v. Fulwiler, 158 Ga. 859 (124 S. E. 689) ; McLamb v. Jackson, 160 Ga. 460 (128 S. E. 580).

No. 7624. April 17, 1930.

2. A mere general allegation that the defendants “threaten to serve said writing claimed to be salary assignments on his employer, which would cause him to lose his position with his employer,” without stating any facts to show that the petitioner would lose his position or be irreparably damaged, or how that result would arise, failed to make a ease for such equitable relief as was prayed. Lee v. King, 142 Ga. 609 (5 6) (83 S. E. 272).

3. Although it is alleged that the defendants are transacting their businesses without the license required by law, nevertheless a borrower cannot maintain such an action in equity to enjoin the lender from suing the borrower, or from disposing of the written assignment, without payment or tender of the actual money received with lawful interest. “Whoever would have equity must do equity.” Patterson v. Moore, 146 Ga. 364 (91 S. E. 116) ; Polite v. Williams, 149 Ga. 726 (3) (101 S. E. 791) ; Liles v. Bank of Camden County, 151 Ga. 483 (107 S. E. 490) ; Poulk v. Cairo Banking Co., 158 Ga. 338 (3) (123 8. E. 292).

4. The judge of the superior court may upon his own motion, when in his judgment the facts and circumstances of any equity case require it, refer the same to an auditor. Civil Code (1910), § 5127; Lamar v. Allen, 108 Ga. 158 (2) (33 S. E. 958).

5. The court did not err in sustaining the findings of the auditor and in ruling against all exceptions to such findings.

Judgment affirmed.

All the Justices concur, except Bussell, C. J., who dissents. O. J. Bundy and J. L. B. Boyd, for plaintiff. B. B. Jackson, for defendants.