Wisenbaker v. Leopard

Supreme Court of Georgia

Wisenbaker v. Leopard

184 S.E.2d 346, 228 Ga. 91, 1971 Ga. LEXIS 467

CourtSupreme Court of Georgia

DecidedSeptember 27, 1971

Docket26661

StatusPublished

Cited by1 cases

This text of 184 S.E.2d 346 (Wisenbaker v. Leopard) 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

Wisenbaker v. Leopard, 184 S.E.2d 346, 228 Ga. 91, 1971 Ga. LEXIS 467 (Ga. 1971).

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Opinion

Grice, Justice.

This case is one where the plaintiff’s complaint sought to recover for the unauthorized removal by the defendants of certain property owned by the plaintiff. The defendants denied the essential allegations of the complaint, and the jury found in favor of their counterclaim. The appeal is from the denial of plaintiff’s motions for new trial and judgment notwithstanding the verdict.

The appellees have raised the question of this court’s jurisdiction of the appeal,

We deem their position to be well taken.

In our view, no equitable feature is involved. The rule is that "Whether an action is one at law or in equity is determined by the allegations of the petition and the nature of the relief prayed, and not by the designation given to the action by the pleader. If the averments of the petition do not make a case in equity, a prayer for equitable relief would not make the same one in equity.” Avant v. Hartridge, 174 Ga. 278, 280 (162 SE 524). See also Borough v. Pettus, 215 Ga. 649, 650 (112 SE2d 592), Johnson v. Mutual Federal Savings &c. Assn., 225 Ga. 245 (167 SE2d 653).

Here, even if the prayers of the complaint be construed as seeking equitable relief, the allegations of the complaint seek only to make out a case for recovery of a money judgment.

In this connection it has been held that "A petition which contains allegations appropriate only to a suit for damages for conversion of personal property does not assume the character of an equity suit merely by virtue of a prayer for equitable relief.” Atlanta Finance Co. v. Fitzgerald, 189 Ga. 121 (5 SE2d 242).

Since there is no basis for this court’s jurisdiction under the Constitution (Code Ann. § 2-3704), this case is

Transferred to the Court of Appeals.

All the Justices concur. Burch & Boswell, John S. Boswell, Sr., for appellant. Joe Vallotton, O. Wayne Ellerbee, for appellees.

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Grice, Justice.

This case is one where the plaintiff’s complaint sought to recover for the unauthorized removal by the defendants of certain property owned by the plaintiff. The defendants denied the essential allegations of the complaint, and the jury found in favor of their counterclaim. The appeal is from the denial of plaintiff’s motions for new trial and judgment notwithstanding the verdict.

The appellees have raised the question of this court’s jurisdiction of the appeal,

We deem their position to be well taken.

In our view, no equitable feature is involved. The rule is that "Whether an action is one at law or in equity is determined by the allegations of the petition and the nature of the relief prayed, and not by the designation given to the action by the pleader. If the averments of the petition do not make a case in equity, a prayer for equitable relief would not make the same one in equity.” Avant v. Hartridge, 174 Ga. 278, 280 (162 SE 524). See also Borough v. Pettus, 215 Ga. 649, 650 (112 SE2d 592), Johnson v. Mutual Federal Savings &c. Assn., 225 Ga. 245 (167 SE2d 653).

Here, even if the prayers of the complaint be construed as seeking equitable relief, the allegations of the complaint seek only to make out a case for recovery of a money judgment.

In this connection it has been held that "A petition which contains allegations appropriate only to a suit for damages for conversion of personal property does not assume the character of an equity suit merely by virtue of a prayer for equitable relief.” Atlanta Finance Co. v. Fitzgerald, 189 Ga. 121 (5 SE2d 242).

Since there is no basis for this court’s jurisdiction under the Constitution (Code Ann. § 2-3704), this case is

Transferred to the Court of Appeals.

All the Justices concur. Burch & Boswell, John S. Boswell, Sr., for appellant. Joe Vallotton, O. Wayne Ellerbee, for appellees.

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Bluebook (online)

184 S.E.2d 346, 228 Ga. 91, 1971 Ga. LEXIS 467, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wisenbaker-v-leopard-ga-1971.

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