Wilson v. Ward

100 S.E. 205, 149 Ga. 325, 1919 Ga. LEXIS 234

• Court: Supreme Court of Georgia
• Decided: September 2, 1919
• Docket: No. 1151
• Status: Published

Opinion

Atkinson, J.

The petition alleges separate canses of action against several of the defendants for money judgments, and seeks ancillary equitable relief (the cancellation of deeds and injunction to prevent transfer or incumbrance of property) against two of the debtor defendants and others. A conspiracy is alleged, in the course of which the debtor defendants are alleged to have fraudulently obtained money from the bank. The suit does not proceed against such defendants as joint wrong-doers, but the plaintiff as transferee of the bank sues on separate notes of such defendants which they executed separately to the bank for money obtained by them. By suing on tire notes the plaintiff ratified the contracts out of which they arose, and the action was resolved into one upon contract rather than in tort based upon the conspiracy. In this respect the case differs from Greer v. Andrew, 133 Ga. 199 (65 S. E. 416), and citations, and similar cases unnecessary to mention. The contracts are separate and distinct from each other, and the defendants could not be joined in one action to recover the amount due on all of them. Civil Code, § 5515; White v. North Georgia Electric Co., 128 Ga. 539 (58 S. E. 33); Ansley v. Davis, 140 Ga. 615 (79 S. E. 454). In order to obtain the ancillary, equitable relief the plaintiff must be a judgment creditor, as in Conley v. Buck, 100 Ga. 187 (28 S. E. 97), and similar cases, or be entitled to obtain a judgment giving a lien upon the property in the same action. DeLacy v. Hurst, 83 Ga. 223 (9 S. E. 1052); Booth v. Mohr, 122 Ga. 333 (50 S. E. 173). Under the circumstances of this case there is no common right or interest in any -question between all the parties to be settled, which would be ground for uniting the several claims in one action. Among other things, the petition seeks a money judgment against J. A. Wilson, a resident of the county, and ancillary equitable relief against persons claiming property under an alleged fraudulent transfer by him; also a money judgment against K. L. Wilson, a non-resident of the county, and ancillary equitable relief against persons claiming under an alleged fraudulent transfer executed by him. As B. L. Wilson could not be joined with J. A. Wilson or the other resident defendants against whom money judgments were sought, the court would be without jurisdiction to render a money judgment against him, or to grant the ancillary equitable relief of cancellation and injunction against him and those claiming by transfer under him. Upon such cause of action it would be necessary to sue them in Bibb county, where R. L. Wilson resides. Fourth National Bank v. Mooly, 143 Ga. 137 (84 S. E. 546); Parker v. Parker, 148 Ga. 196 (96 S. E. 211). From what has been said, it follows that the petition was multifarious on account of misjoinder of causes of action for money judgments; and being so, it did not allege a cause of action for any of the ancillary equitable relief, and the court was without jurisdiction of the non-resident defendants.

Judgment reversed.

All the Justices concur.