A defendant to any action in the superior court or in the Georgia State-wide Business Court, whether the action is for legal or equitable relief, may claim legal or equitable relief, or both, by framing proper pleadings for that purpose and sustaining them by sufficient evidence.
(Ga. L. 1884-85, p. 36, § 2; Civil Code 1895, § 4837; Civil Code 1910, § 5410; Code 1933, § 37-905; Ga. L. 2019, p. 845, § 3-5/HB 239.)
The 2019 amendment, effective May 7, 2019, inserted "or in the Georgia State-wide Business Court" in the middle of this Code section.
Law reviews.- For article on the 2019 amendment of this Code section, see 36 Ga. St. U.L. Rev. 1 (2019).
JUDICIAL DECISIONS
Effect of suit in superior court.
- When a plaintiff sues a defendant in the superior court, the policy of the law requires the controversy growing out of the cause of action alleged by the plaintiff to be settled in that suit. Hamilton v. First Nat'l Bank, 180 Ga. 820, 180 S.E. 840 (1935); Brewer v. Williams, 210 Ga. 341, 80 S.E.2d 190 (1954).
An ancillary petition may be filed after as well as before a decree to enable a court of equity 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, on application in a proper case, 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 court of equity 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).
Claims arising ex contractu cannot be set off against claims arising ex delicto, except upon equitable grounds. Brewer v. Williams, 210 Ga. 341, 80 S.E.2d 190 (1954).
Since plaintiffs' petition seeking to enjoin the defendant from the commission of an alleged tort in cutting and removing timber was not an action in tort or ex delicto, but an equitable proceeding, defendant was not only entitled but bound to set up all defenses that he had to the suit, either legal or equitable, and to pray for all relief needed in aid thereof, ordinary or extraordinary. Brewer v. Williams, 210 Ga. 341, 80 S.E.2d 190 (1954).
Cited in Malsby v. Young, 104 Ga. 205, 30 S.E. 854 (1898); McCall v. Fry, 120 Ga. 661, 48 S.E. 200 (1904); Shorter v. Shorter, 150 Ga. 109, 102 S.E. 863 (1920); Kirkpatrick v. Coates, 154 Ga. 643, 115 S.E. 103 (1922); O'Leary v. Costello, 169 Ga. 754, 151 S.E. 487 (1930); Tanner v. Wilson, 183 Ga. App. 53, 187 S.E. 625 (1936); Winn v. Armour & Co., 184 Ga. 769, 193 S.E. 447 (1937); Hicks v. Atlanta Trust Co., 187 Ga. 314, 200 S.E. 301 (1938); Ellis v. Millen Hotel Co., 192 Ga. 66, 14 S.E.2d 565 (1941); Georgia Power Co. v. Mayor of Athens, 206 Ga. 513, 57 S.E.2d 573 (1950); Earney v. Owen, 213 Ga. 412, 99 S.E.2d 201 (1957); Travelers Indem. Co. v. Callaway, 215 Ga. 684, 113 S.E.2d 136 (1960); Ogletree v. Cathrall, 110 Ga. App. 100, 137 S.E.2d 799 (1964); Georgia Money Corp. v. Rissman, 220 Ga. 476, 139 S.E.2d 486 (1964); Kiser v. Georgia Power Co., 126 Ga. App. 551, 191 S.E.2d 311 (1972).
RESEARCH REFERENCES
Am. Jur. 2d.
- 27 Am. Jur. 2d, Equity, §§ 19, 194 et seq.
C.J.S.- 31 C.J.S., Equity, § 258 et seq.
ALR.
- Inclusion in bill for divorce or annulment of allegations and prayer to impress trust upon property or otherwise settle property rights, 93 A.L.R. 327.