Bernstein v. Fagelson

Hines, J. (After stating the foregoing facts.) This case was made returnable, by the bill of exceptions and the certificate thereto, to the Court of Appeals. The Court of Appeals by order transferred the case to this court, upon the ground that it is not a mere suit at law, but amounts to an equitable petition for specific performance, of which this court alone has jurisdiction to pass upon the assignments of error made in the bill of exceptions. This court has exclusive jurisdiction of all writs of error brought to review judgments of the superior courts “in all equity cases.” Acts 1916, p. 19; 10 Park’s Code Supp. 1922, § 6502. Specific per 287 formance of contracts is a, branch of equity jurisprudence; and a petition which seeks to compel a party to a contract to specifically perform it is a case in equity. Does the petition make such a case ? Whether a petition is based upon an equitable or a legal cause of action depends upon the nature of the relief sought, as shown by the prayers, which indicate whether the alleged cause of action is intended by the pleader as founded upon equitable or legal principles. Steed v. Savage, 115 Ga. 97 (41 S. E. 272). To make a case in equity, the allegations of the petition must be applicable to the equitable relief prayed, and there must be a prayer either for the specific relief prayed, or for general relief. Copeland v. Cheney, 116 Ga. 685 (43 S. E. 59). Whether a petition states an equitable or a legal cause of action depends upon the relief prayed. Fowler v. Davis, 120 Ga. 442 (47 S. E. 951). In determining whether a case is one at law or in equity, the nature of the relief sought, rather than the form of the allegations of the petition, is important. Griffin v. Collins, 122 Ga. 102, 110 (49 S. E. 827). The allegations and prayers of the petition in the instant case do not raise a question of specific performance. Pound v. Smith, 146 Ga. 431 (2) (91 S. E. 405). The petition does not specifically allege that the plaintiff is seeking specific performance by the defendant of the contract sued on. The implication that the plaintiff is seeking such relief does not arise from the allegations of the petition. The prayers of the petition are exceedingly skimpy. The plaintiff only prays for a judgment against the defendant for $2500, and for process. In view of its allegations and its prayers, the petition in this case, when properly construed, is an action by the plaintiff to recover from the defendant damages for breach of the written contract sued on. The fact that an undivided half interest in the patent involved would have to be transferred by the Independent Tool Products Company to the defendant, and that such transfer might have to be authorized by the vote of its stockholders, the sole stockholders being the plaintiff and the defendant, is not alleged for the purpose of requiring the defendant, as a stockholder, to join with the plaintiff in authorizing such transfer, but is made for the pxmpose of showing the ability of the plaintiff, with.the aid of the defendant, to have the company make such transfer, or to excuse the plaintiff for non-performance of his obligation to have said one-half interest in said patent transferred 288 to the defendant, and to place the blame upon him, if he fails to join the plaintiff in authorizing and having the company to make such transfer. In other words, this allegation in the petition is made to show the ability of the plaintiff, with the defendant’s aid, to perform, or as an excuse for the failure of the plaintiff to have this interest in the patent transferred to the defendant, on the defendant’s default in this matter, the plaintiff averring his willingness to authorize the company to make the transfer. At most the petition states some facts which squint at equitable relief, and other facts which the pleader claims entitle him to legal relief. In these circumstances the character of the action will be determined by the nature of the prayers of the petition. There being no prayer for any equitable relief, and there being a prayer for a money judgment against the defendant for breach of the contract sued on, the action will be held to be one at law and not in equity. Mulherin v. Neely, 165 Ga. 113 (139 S. E. 820). So we are of the opinion that the petition in this case makes a case at law. It follows that the Court of Appeals has jurisdiction to determine the questions raised by the bill of exceptions, and that this court is without jurisdiction. The case is therefore remanded to that court. All the Justices concur.