Cook v. Jenkins

35 Ga. 113

• Court: Supreme Court of Georgia
• Decided: December 15, 1866
• Status: Published

Opinion

Harris, J.

[1.] The defendant in error, upon receiving notice of an award having been made against him in the matters of difference between him and plaintiff in error, under the arbitration act of 1856, filed his bill in equity to set aside said award, and prayed and obtained an injunction to restrain his copartner, Cook, from collecting and controlling, whilst the litigation was pending, the partnership assets. The bill was answered, and objections filed to the sufficiency of the answer. A motion was made by plaintiff in error to dissolve the injunction, which was granted on the condition that Cook give bond and security to indemnify and save Jenkins harmless as to the firm liabilities. This requirement is assigned as error.

Jt seems to ug that this condition is substantially in accordance with the award; but even if the arbitrators had failed to make such provision, a Court of Equity should have promptly interposed in behalf of the ■ defendant in error.. It would have been a great outrage to divest the defendant, however badly he may have acted, of all the assets of the firm — all his interest in the firm property — all power to collect, or control, or interfere with any of it; indeed, to put all in the unlimited and uncontrolled disposition of Cook 3 and leave defendant stripped of all property, and. power, without any protection or indemnity against the demands or suits which might be made against him as a copartner. We apprehend that it belongs, necessarily, to the office of chancellor, when decreeing relief, to give, in every case under the general prayer, such relief as is appropriate, whether specifically asked or not. This power would have enabled the Judge below to have exacted security against the misapplication of the partnership assets; but the indemnity required was such as the award authorized, as by it the firm debts were to be paid by Cook.

All objections to the award having been waived by the counsel for the defendant in error, we are relieved from at all looking into the volumnious transcript of the record accompanying the bill of exceptions.

[2.] hi or is there any necessity for considering and deciding in this case, whether a party defendant to a suit in euqity is relieved from the duty of making a full and responsive answer to the bill because complainant has waived any discovery from defendant as a witness. It is very certain that an answer (notwithstanding the change made by statute) is still as necessary as a pleading as ever, and as such cannot be dispensed with. Many reasons occur to us why an answer, though discovery be waived, should still be full and responsive. Certainly, it is the safer coursé to adhere to old forms until they may be abandoned by authority. In thus expressing ourselves, we desire it to be understood that we do not thereby decide the point made; it will be decided only after full argument and careful deliberation.

Let the judgment below be affirmed.