Hargraves v. Jones

Supreme Court of Georgia

Hargraves v. Jones

27 Ga. 233

DecidedJanuary 15, 1859

StatusPublished

This text of 27 Ga. 233 (Hargraves v. Jones) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hargraves v. Jones, 27 Ga. 233 (Ga. 1859).

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Opinion

By the Court.

McDonald J.

delivering the opinion.

The bill was filed and answered in 1844. It was amended in June, 1857. The original defendant died, and the present defendant, as his administrator, was made a party in his stead. He answered the amended bill on the 8th June 1857. His answer was excepted to, some of the exceptions were sustained, and those which were sustained were answered by the defendant.

[238]*238[1] The motion to dismiss the bill was made when the cause was called for a hearing on the merits, thirteen years after it was filed, and after it had been fully answered. The ground relied on in support of the motion was, that the complainant had an adequate remedy at common law. The bill ought to have been demurred to at an early stage of the cause. 2 Maddocks, Ch. 170, 287. It is too late after the parties have submitted so long to the jurisdiction of a Court of Chancery, and the parties have incurred so much expense in the litigation ro move to dismiss the bill for such cause. Underhill vs. Van Courtland, 2 Johnson’s Ch. Rep. 339, 369.

The answer and the original bill admit sufficient matter to warrant the retention of the injunction, if there was sufficient ground for granting it in the first instance. That assets sufficient were placed in the hands of the defendant in error belonging to Dillingham’s estate to indemnify him for what he had paid, and the balance due on the execution, as alleged in the defendant’s answer, may depend on proofs at the hearing under a proper modification of the pleadings, if they do not now warrant its admission. The part of the answer which brings this matter before the Court, is not strictly responsive to the bill; and if, on going into an account between the parties, it should be found that defendant in error has in his hands assets properly applicable to his indemnity for what he has paid, and the amount for which he is yet liable, the injunction may then be dissolved, and the defendant in error be required to account for the said assets, either by a decree to pay the amount yet due, and to acknowledge satisfaction of what has been paid, if proper parties to warrant such a decree be before the Court; orto decree a dismissal of the bill against the plaintiff in error, and to allow the execution to proceed.

Judgment affirmed.

Judge Benmwg being related to one of the parties did not preside in this case.

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By the Court.

McDonald J.

delivering the opinion.

The bill was filed and answered in 1844. It was amended in June, 1857. The original defendant died, and the present defendant, as his administrator, was made a party in his stead. He answered the amended bill on the 8th June 1857. His answer was excepted to, some of the exceptions were sustained, and those which were sustained were answered by the defendant.

[238]*238[1] The motion to dismiss the bill was made when the cause was called for a hearing on the merits, thirteen years after it was filed, and after it had been fully answered. The ground relied on in support of the motion was, that the complainant had an adequate remedy at common law. The bill ought to have been demurred to at an early stage of the cause. 2 Maddocks, Ch. 170, 287. It is too late after the parties have submitted so long to the jurisdiction of a Court of Chancery, and the parties have incurred so much expense in the litigation ro move to dismiss the bill for such cause. Underhill vs. Van Courtland, 2 Johnson’s Ch. Rep. 339, 369.

The answer and the original bill admit sufficient matter to warrant the retention of the injunction, if there was sufficient ground for granting it in the first instance. That assets sufficient were placed in the hands of the defendant in error belonging to Dillingham’s estate to indemnify him for what he had paid, and the balance due on the execution, as alleged in the defendant’s answer, may depend on proofs at the hearing under a proper modification of the pleadings, if they do not now warrant its admission. The part of the answer which brings this matter before the Court, is not strictly responsive to the bill; and if, on going into an account between the parties, it should be found that defendant in error has in his hands assets properly applicable to his indemnity for what he has paid, and the amount for which he is yet liable, the injunction may then be dissolved, and the defendant in error be required to account for the said assets, either by a decree to pay the amount yet due, and to acknowledge satisfaction of what has been paid, if proper parties to warrant such a decree be before the Court; orto decree a dismissal of the bill against the plaintiff in error, and to allow the execution to proceed.

Judgment affirmed.

Judge Benmwg being related to one of the parties did not preside in this case.

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Bluebook (online)

27 Ga. 233, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hargraves-v-jones-ga-1859.