Patterson v. Turner

Bleckley, Justice. 1. “Want of equity” is a phrase which has two meanings. A bill may want equity because it presents a good case for a court of law, or because it presents no case at all. Used in the former sense, the point is made that the complainant, by his own showing, does not need the aid of a court of equity; used in the latter, it signifies that he is entitled to no redress in any court. A somewhat analagous instance of ambiguity in common speech may j>e specified: We may say “this purse contains no gold,” when it is full of silver, or when it is empty; or “ this vessel contains no wine,” when it is full of oil, or when it contains neither wine nor oil. In English practice, and also in our own until it was made optional to resort to the superior court as a court of law for the adjudication of equitable as well as legal rights, if a bill wanted equity in either sense, a court of equity would not' entertain it. And this is true still with us, if the objection is presented by demurrer in due time. But as the superior court has both legal and equitable juris [678] diction, and as it makes no difference on which side of the court a plaintiff proceeds for an equitable cause of action, so it has been held and is now settled, it makes no difference on which side he proceeds for a legal cause of action unless he is met by a demurrer. If the defendant suffers the bill to proceed to a hearing, and the delay and expense of preparation for trial to be incurred, not demurring when he ought to have demurred, he is understood to waive his strict legal right to litigate the merits on the law side of the superior court rather than the equity side. The jurisdiction is not defective in a sense which forbids waiver, for the same physical, corporeal tribunal administers justice on both sides of the superior court — the same judge and juries; and when in session, the court is always open both as a court of law and a court of equity. If the cause is properly located territorially, and is one of which the superior court in either of its two functions has jurisdiction, and a good case for either a judgment at law or a decree in equity is embraced in the bill, a motion made at the hearing to dismiss the bill for want of equity comes too late, and should be overruled. 55 Ga., 443, 553. If, however, the bill lacks equity in the larger and more comprehensive sense, that is, if the bill is empty of any case — contains, so to speak, neither gold nor silver, neither wine nor oil, a motion at the hearing to dismiss is no less effective for its overthrow than is a regular demurrer duly filed. While the defendant is not allowed to defeat by motion a meritorious case because it is on the wrong docket, he is allowed to defeat, by that means, a case so devoid of merit that it ought, taking the charges of the bill as time, to be on no docket whatever. Ignoring the ejectment suit to which the present bill refers, it cannot well be questioned that the bill shows a cause of action which, if proved as laid, would entitle the complainants to recover at law the premises in controversy. They allege that no prescription has ripened against them because of their infancy, and that in 1 *66 the elder was [679] eighteen and the younger fifteen years of age. The statute gives infants seven years in which to sue for land after attaining majority, and this bill was filed in 1873, before the seven years had expired as to either of the complainants. On the face of the bill, the legal title is in them, and the loss of the deed to their deceased father, if they can prove its contents and its execution, is no obstacle to a recovery. 2. As to the ejectment suit, it appears that only one of the three defendants in the bill was an actual party to it; and it seems to us that to adjudicate upon the effect of the judgment, as to this entire litigation, in the absence of the record of that suit, or a full recital of its contents, would be extremely unsafe. As to exhibits or recitals, see 12 Ga., 417; 13 Ib., 24; 18 Ib., 492; 16 Ib., 73, 74, 75; 21 Ib., 207. There is no virtue in merely referring to a record, without appending a copy or stating its contents. If the complainants needed the aid of that record as pleading, they could not obtain it by any such reference as they have made to it; but they do not need it for at least a part of the relief for which they pray, there being no demurrer to their bill. In so far as the ejectment suit and its result may be favorable to the defendants, something more is needed for full and complete development than the meagre description of the suit found in the bill. It is better to have the record brought into the pleadings before disposing of the bill finally and forever. A mere motion to dismiss should have been denied. Judgment reversed.