In all cases of fraud, except fraud in the execution of a will, equity has concurrent jurisdiction with the law.
(Orig. Code 1863, § 3103; Code 1868, § 3115; Code 1873, § 3172; Code 1882, § 3172; Civil Code 1895, § 4024; Civil Code 1910, § 4621; Code 1933, § 37-701.)
Cross references.- For further provisions regarding actions for fraud, deceit, etc., see T. 51, C. 6.
JUDICIAL DECISIONSANALYSIS
General Consideration
History generally.
- This section was derived from Trippe & Slade v. Ward, 2 Ga. 304 (1847) and DeLaperriere v. Williams, 167 Ga. 648, 146 S.E. 482 (1929).
In all cases of fraud equity has concurrent jurisdiction with the law, but the court first taking cognizance of the case will retain it. Jordan v. General Ins. Co. of Am., 92 Ga. App. 77, 88 S.E.2d 198 (1955).
Reluctance of equity to assume jurisdiction.
- Though equity has concurrent jurisdiction with law in all cases of fraud except those in wills, unless some substantial equitable relief is sought, equity is reluctant to assume jurisdiction. Walsh v. Campbell, 130 Ga. App. 194, 202 S.E.2d 657 (1973).
Any misrepresentation intended to deceive and which does deceive is a fraud, for which a party is entitled to a remedy at law. Oliver v. O'Kelley, 48 Ga. App. 762, 173 S.E. 232 (1934).
Misrepresentation is one of the grounds on which equitable relief may be invoked in regard to judgments. Johnson v. Bogdis, 205 Ga. 535, 54 S.E.2d 620 (1949), later appeal, 207 Ga. 650, 63 S.E.2d 658 (1951).
One of the most frequently recurring forms of fraud on the part of one litigant against the other, entitling the latter to relief in equity against the judgment finally entered, is the making of some agreement or representation for the purpose of preventing an appearance or defense in the original action and reliance upon which has had the effect intended. Johnson v. Bogdis, 205 Ga. 535, 54 S.E.2d 620 (1949), later appeal, 207 Ga. 650, 63 S.E.2d 658 (1951).
Cited in Equitable Bldg. & Loan Ass'n v. Brady, 171 Ga. 576, 156 S.E. 222 (1930); Equitable Bldg. & Loan Ass'n v. Brady, 175 Ga. 43, 164 S.E. 674 (1932); Oliver v. O'Kelley, 48 Ga. App. 762, 173 S.E. 232 (1934); Grimmett v. Barnwell, 184 Ga. 461, 192 S.E. 191 (1937); Furr v. Jordan, 196 Ga. 862, 27 S.E.2d 861 (1943); Beavers v. Williams, 199 Ga. 114, 33 S.E.2d 343 (1945); Fulmer v. Wilkins, 201 Ga. 322, 39 S.E.2d 405 (1946); Heath v. Jones, 168 F.2d 460 (5th Cir. 1948); Clark v. White, 185 F.2d 528 (5th Cir. 1950); Rountree v. Davis, 90 Ga. App. 223, 82 S.E.2d 716 (1954); Oliver v. Farmer's State Bank, 224 Ga. 56, 159 S.E.2d 405 (1968); Sikes v. Sikes, 231 Ga. 105, 200 S.E.2d 259 (1973); Holder v. Brock, 129 Ga. App. 732, 200 S.E.2d 912 (1973); Central Soya Co. v. Bundrick, 234 Ga. 133, 214 S.E.2d 556 (1975).
Equitable Jurisdiction Dependent on Adequacy of Legal Remedy
Equitable jurisdiction in cases of fraud extended only where remedy at law is deficient.
- This general principle does not authorize a suit in equity merely to recover damages for fraud, since the aggrieved party in such a case has an adequate and complete remedy at law. Aetna Ins. Co. v. Lunsford, 179 Ga. 716, 177 S.E. 727 (1934).
Petition seeking to rescind a conditional bill of sale because of alleged fraudulent representations of the vendor as to the kind, quality, and condition of the personalty sold, to recover the portion of the purchase money paid by the vendee, and for injunction, cancellation, and accounting, in which are set up no peculiar circumstances showing a necessity of interposition by a court of equity, such as insolvency or nonresidence of the vendor, is not maintainable in equity, as the plaintiff has an adequate and complete remedy at law, nor would the fact that it was alleged that the vendor was threatening to transfer the conditional sale contract to a third person afford any ground for equitable relief, under the facts. Williford v. Haverty Furn. Co., 183 Ga. 707, 189 S.E. 521 (1937).
When it appeared that insurance company had an adequate remedy at law in a suit filed by the insured against the company claiming disability payments under the policy, a petition in equity brought by the company to cancel the contract of insurance on the ground of fraud in its procurement was properly dismissed on demurrer (now motion to dismiss). Penn Mut. Life Ins. Co. v. Childs, 189 Ga. 835, 7 S.E.2d 907 (1940).
While it is true that in all cases of fraud equity has concurrent jurisdiction with the law, equity takes jurisdiction only where the operation of the general rules of law would be deficient in protecting the rights of the complaining party. Gandy v. Robinson Co., 216 Ga. 190, 115 S.E.2d 341 (1960).
Pleading and Practice
Judgments of probate courts may be set aside by equity, in a direct proceeding for that purpose, on the ground that they were procured by fraud. Johnson v. Bogdis, 205 Ga. 535, 54 S.E.2d 620 (1949), later appeal, 207 Ga. 650, 63 S.E.2d 658 (1951).
It has been many times held that judgments of courts of ordinary (now probate courts) may be set aside by equity, in a direct proceeding for that purpose, on the ground that they were procured by fraud. Maddox v. Wheeler, 230 Ga. 580, 198 S.E.2d 284 (1973).
RESEARCH REFERENCES
Am. Jur. 2d.
- 27 Am. Jur. 2d, Equity, § 20. 37 Am. Jur. 2d, Fraud and Deceit, § 323 et seq.
C.J.S.- 30 C.J.S., Equity, § 48 et seq. 37 C.J.S., Fraud, § 74.
ALR.
- Right of insurer to have issue of fraud, raised in action on the policy, tried in equity, 97 A.L.R. 572.
Reasonable expectation of payment as affecting offense under "worthless check" statutes, 9 A.L.R.3d 719.