Mayer v. Walker

Jenkins, J. This was a suit against E. W. Bingham and Mrs. Laura L. Walker upon promissory notes given by Bingham to the plaintiff for the purchase-price of certain real estate, for which the plaintiff gave to him a bond for title. It. is alleged in the-petition that Bingham subsequently sold the real estate to defend'ant Laura L. Walker, and transferred to her the bond for title, and that, as a part of the consideration of the transfer, Laura L. Walker assumed the payment of the notes given to the plaintiff. The petition. prayed for a judgment against both defendants for the amount due upon the notes, together with attorney’s fees. Bingham' filed no-defense. Laura L. Walker demurred to the petition, on the ground that “It is not, alleged that this defendant made any promise to the plaintiff, or that there was any consideration moving from the plaintiff to this defendant.” This demurrer the trial court sustained, and the plaintiff excepted. Held: 1. The writ of error in this case having been originally filed in the Supreme Court, and having been by that court transferred to this court, such action by the Supreme Court was equivalent to a holding that the plaintiff’s petition was not an equitable proceeding, but an action at • law. 2. Whatever may be the plaintiff’s rights in a proper equitable proceeding, she can not maintain the present legal remedy, by which it is sought to enforce a contract to which the plaintiff was not a party, and which was made between other and different parties. Sheppard v. Bridges, 137 Ga. 615 (74 S. E. 245); McKenzie v. McKenzie, 23. Ga. App. 27 (97 S. E. 410). Judgment affirmed. Wade, C. J., and Luke, J., concur. E. M. & G. F. Mitchell, for defendants, cited: Hawkins v. Con. R. Co., 119 Ca. 160 (6); Civil Code (1910), §§ 4249, 5516; Sheppard v. Bridges, supra; Union City Realty Co. v. Wright, supra; Steed v. Savage, 115 Ga. 101; Copeland v. Cheney, 116 Ga. 687; Fowler v. Davis, 120 Ga. 445, 687; Pound v. Smith, 146 Ga. 435; McKenzie v. Flannery, 90 Ga. 597.