Armstrong v. American National Bank

Evans, P. J. (After stating the foregoing facts.) 1. The judgment on demurrer concludes the parties only on questions necessarily involved in the decision of the points raised on the demurrer. The grant or refusal of an injunction pendente lite involves an exercise of discretion as to whether the relief asked is necessary pending the final judgment in the case. The trial court does not lose its jurisdiction of the cause pending a review of judgment on demurrer to the petition by the Supreme Court; and it was competent for the judge, after overruling the demurrers, and while that judgment is under review by a writ of error in the Supreme Court, to pass upon the necessity of a preservative order pendente lite. Montgomery v. King, 125 Ga. 388 (54 S. E. 135); Moody v. Cleveland Woolen Mills, 133 Ga. 741 (66 S. E. 908). 2. The substance of the plaintiff’s complaint is that he was fraudulently induced to purchase worthless stock in a failing bank. He seeks to recover from the parties to the alleged fraud the money which he actually paid, and to enjoin the American National'Bank from prosecuting its suit in the city court of Macon on the note [249] given for the balance of the purchase-money. His defense to the note which the American National Bank holds is that the other defendants practiced such fraud upon him in selling stock in the Commercial National Bank that he is not liable on the note, and that the American National Bank is not such a bona fide holder for value before maturity as to preclude him from making that defense. If the note sued on was procured by fraud, that defense can be set up in a court of law. No equitable intervention in aid of such defense is necessary. Even if his defense be equitable in its nature, it can be pleaded against a recovery in the action in the city court. A verdict in the city court in his favor will effectually protect him against the payment of the note. No reason occurs to us why he can not make his defense in the forum where the suit is pending, just as effectually as he could in the present action. The court considered the whole ease on the sworn pleadings, and refused to enjoin the suit in the city court. It is argued that the judge did not exercise his discretion, but refused the injunction on the sole ground that the equities of the petition had been sworn off by the answer. We have set out in the statement of the case the full judgment of the court; and we do not think that this criticism of the judgment is justified. It is manifest from reading the judgment that the judge did exercise a discretion, and, in view of the whole case, we do not think he abused it when he refused a pendente-lite injunction. Judgment affirmed. All the Justices concur, except Beck, J., absent.