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148 Ga. 660

Taylor v. Lamar

Supreme Court of Georgia

Decided January 15, 1919

Supreme Court of Georgia · decided 1919-01-15

<p>The action, after amendment of the petition, being against one in his representative capacity as trustee only, it was not error to dismiss the suit as to him individually.</p> <p>Gilbert, J., dissenting. This being an action at law, and not a cause in equity, the Court of Appeals, and not the Supreme Court has jurisdiction of the writ of error.</p>

Cited by 1 later decisions — most recently September 1939

1 state decisions

Relies on Shattuck v. Shattuck · Burress v. Montgomery · Robison v. Carey

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Decided 1919-01-15

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Gilbert, J.,

¶1dissenting as to jurisdiction. From an examination ' of the plaintiffs’ petition it appears that this court is without jurisdiction to review the case.

¶2Is this a cause in equity or an action at law? If it is the former, this court has jurisdiction; if the latter, it has not. It is a fact admitted by courts as ■well as law-writers, that there is no rule for distinguishing between a cause in equity and an action at law which will prove satisfactory and convincing in every instance. Whitehead v. Shattuck, 138 U. S. 151 (11 Sup. Ct. 276, 34 L. ed. 873). It is settled, however, that no amount of mere descriptive words, such as referring to the suit as one in equity, or as praying for a discovery or accounting, or alleging that there is no adequate remedy at law, will determine a suit to be a cause in equity if there is in fact an adequate and complete remedy at law. Courts will determine whether equity alone affords full relief, by looking to the facts alleged rather than to the conclusions of the pleader. Burress v. Montgomery, 148 Ga. 548 (97 S. E. 538). For a further discussion of this subject see 8 Standard Enc. PI. 450, 451, § 449 (note); 1 Pomeroy’s Eq. Jur. (4th ed.) §§ 129, 130, et seq.

¶3It is apparent from the facts alleged that no equitable discovery, nor equitable accounting, nor equitable apportionment is shown to be necessary by the petition, as in Robinson v. Carey, 8 Ga. 527. On the other hand it is obvious that the remedy sought is a money judgment for a fixed sum against each shareholder without apportionment, and that the courts of law afford an adequate relief. “A bill was filed to collect the amounts previously assessed against the stockholders of a corporation, under a statute making them severally and individually liable for its debts to an amount equal to the value of their respective shares. While an enquiry to determine how large the assessment should be should properly be made in equity, "after the rate of assessment has been fixed, and the individual liability of each stockholder has thus been ascertained, the enforcement of such liability is the proper subject of a *663suit at law, in which the separate rights of the defendant stockholders are distinctively to be considered/ ” 1 Pom. Eq. Jur. (4th ed.) 414, § 261%

¶4This court being without jurisdiction, and the Court of Appeals having jurisdiction to review the case, it should be transferred to the Court of Appeals.

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