Any person may, in any civil action, claim equitable relief by appropriate and sufficient pleadings and obtain the equitable relief proper in the case.
(Ga. L. 1884-85, p. 36, § 1; Civil Code 1895, § 4834; Civil Code 1910, § 5407; Code 1933, § 37-902.)
Law reviews.- For comment on McMillian v. Spencer, 162 Ga. 659, 134 S.E. 921 (1926), see 1 Ga. L. Rev. 52 (1927).
JUDICIAL DECISIONS
All legal and equitable defenses must be set up in one action.
- Former Civil Code 1910, § 5406 et seq.(see O.C.G.A. § 23-3-1 et seq.) and former Civil Code 1910, §§ 5410 and 5412 (see O.C.G.A. §§ 23-4-2 and23-4-3) have been construed by the Supreme Court of Georgia with the utmost liberality, and the manifest intention of the General Assembly that all the remedies and relief to which the respective parties in any civil cause might be entitled should be applied and accorded in one action, has been given full effect. Star Laundry Co. v. May Dry Cleaning Co., 176 Ga. 34, 166 S.E. 655 (1932); Johnson v. Fulton County, 216 Ga. 498, 117 S.E.2d 155 (1960).
Action arising out of general plan between parties must be asserted in one action.
- When proceeding to enjoin an action against plaintiff to cancel a sale of plaintiff's property by defendant as well as the note on which the defendant is suing arose out of same general plan between the parties to develop and operate a recreational place, defendant in action on note by answer and counterclaim must assert all the defendant's claims for legal and equitable relief arising out of the general plan between the parties, and could not bring an independent action to enjoin action on the note and litigate those matters. Clay v. Smith, 207 Ga. 610, 63 S.E.2d 602 (1951).
An ancillary petition may be filed after as well as before a decree to enable a superior court to effectuate its own decree by ordering one put in possession of property where entitled thereto under its original decree, in order to avoid the further litigation of questions once settled between the same parties. Voyles v. Federal Land Bank, 182 Ga. 569, 186 S.E. 405 (1936).
After an ancillary petition seeking possession of property is filed, the court may cause other parties to be made, where they are asserting some rights affecting the property and while a claimant in possession may not be subject to summary dispossession by the sheriff under the warrant sued out, the superior court has authority, under its broad powers, to make the claimant a party in order to settle the rights of all parties in one action, without remitting the petitioner in the ancillary proceeding to a common-law action of ejectment. Voyles v. Federal Land Bank, 182 Ga. 569, 186 S.E. 405 (1936).
Injunction pending trover action.
- An injunction to restrain interference with defendant's possession pending action in trover might have been obtained by a plea to the trover action. Mallory Bros. & Co. v. Cowart, 90 Ga. 600, 16 S.E. 658 (1892).
Obtaining relief in claim action.
- In a claim case, in the absence of a suitable amendment of proper equitable pleas, the plaintiff in fi. fa. cannot introduce evidence which tends to show merely that in good conscience and equity the claimant is liable for a debt. Gormerly v. Chapman, 51 Ga. 421 (1874); Hamberger v. Easter, 57 Ga. 71 (1876); Southern Mining Co. v. Brown, 107 Ga. 264, 33 S.E. 73 (1899); Ford v. Holloway, 112 Ga. 851, 38 S.E. 373 (1901); Liberty Lumber Co. v. Enecks, 23 Ga. App. 311, 98 S.E. 97 (1919).
Amendment seeking equitable relief in common law action allowed. Moon v. First Nat'l Bank, 163 Ga. 489, 136 S.E. 433 (1927).
Cited in Douglas v. Jenkins, 146 Ga. 341, 91 S.E. 49, 1918C Ann. Cas. 322 (1916); McMillian v. Spencer, 162 Ga. 659, 134 S.E. 921 (1926); Burgess v. Ohio Nat'l Life Ins. Co., 177 Ga. 48, 169 S.E. 364 (1933); Leary v. First Nat'l Bank, 177 Ga. 179, 170 S.E. 84 (1933); Reynolds v. Ingraham, 179 Ga. 398, 175 S.E. 918 (1934); Biddle v. Papa, 180 Ga. 468, 179 S.E. 357 (1935); Hicks v. Atlanta Trust Co., 187 Ga. 314, 200 S.E. 301 (1938); Davis v. Wright, 194 Ga. 1, 21 S.E.2d 88 (1942); Clements v. Hollingsworth, 202 Ga. 684, 44 S.E.2d 381 (1947); Seckinger v. Citizens & S. Nat'l Bank, 213 Ga. 586, 100 S.E.2d 587 (1957); A & D Barrel & Drum Co. v. Fuqua, 132 Ga. App. 827, 132 S.E.2d 272 (1974).
RESEARCH REFERENCES
Am. Jur. 2d.
- 27 Am. Jur. 2d, Equity, §§ 182, 188 et seq.
C.J.S.- 30 C.J.S., Equity, §§ 171 et seq., 179 et seq.
ALR.
- Joinder of parties or causes of action in suits under the Federal Employers' Liability Act, 13 A.L.R. 159.
Right under general prayer to relief inconsistent with prayer for specific relief, 30 A.L.R. 1175.
"Rightness" of judgment as open for consideration in suit in equity to complete or effectuate it, 139 A.L.R. 1507.
Measure and items of recovery for improvements mistakenly placed or made on land of another, 24 A.L.R.2d 11.