Diannah Griggs vs. Seaborn J. Thompson and Abner Glauten, 1 Georgia Decisions 146

As to the first ground, that there is no equity in the bill, this must depend upon the truth of the fact assumed in the second ground, to wit: that complainant has an adequate Common Law remedy. It is to be observed, in the first place, that this is a general demurrer, and therefore goes to the whole bill, and when this is the case, and there is any part, either as to the relief or the discovery, to which the defendant ought to put in an answer, it is generally considered that the demurrer being entire must be overruled.

One charge in the bill, is, that the note of complainant was transferred to Glauten, as complain, ant believes, after she was garnisheed, but she does not know at what time; now this is a very important fact to be established to enable her to defend herself in the suit pending against her, and it becomes necessary to resort to the conscience of said Glauten to establish it, and it is impossible to defend said action suecessfuEy without such proof.

The complainant cannot therefore be said to have an adequate remedy at Law, so far as that case is concerned, with regard to the judgment in favour of Thompson ; it may be true that she may have a Common Law remedy, provided the judgment upon which the garnishment was predicated has been paid off, but if it has not, it is the more important to have the discovery from Glau-ten, and if it has, then it ought to be satisfied and not kept open fraudulently, as is alleged. It seems to me then, under this state of facts, that complainant has not an adequate remedy at Common Law.

But in bills of this kind, the Courts do not require a party to shew all the equitable circumstances which are ordinarily required to entitle him to go into a Court of Equity, but it is said that Courts of Equity assume jurisdiction in such cases. — Milford’s Pleadings, 196. It is further said, that the sole ground on which the jurisdiction of the Court in this case is supported, is the danger of injury to the plaintiff from the doubtful titles of the defendants. — Milford’s Pleadings, 83.

Then, are there not two parties here claiming the same fund ? and is not the complainant in danger of being injured from their doubtful titles ? If so, according to this authority, the Court has jurisdiction. I do not think the third ground is sustained by the facts. The 4th ground, is, that complainant seeks to go into the consideration of a subsisting judgment.

This is not the object of the bill; but so far as the judgment is concerned it only proposes to be relieved from its operation upon the ground that it is paid off, and it is somewhat difficult to determine how the complainant could be relieved against the operation of this judgment by any Common Law proceeding. It will be recollected, that the bill does not allege that the judgment against complainant, founded on the garnishment, has been paid, but that the original judgment, in favour of Thompson vs.

Whatley, which was the foundation of the garnishment, has been paid- — then, could the Court upon an affidavit of illegality to the execution vs. complainant, go back behind the judgment upon which it is predicated, and enquire into the facts whether the ougmal judgment, upon which it is predicated, be paid off? I think it very doubtful. Then, if it could not, is not this a sufficient reason why' the complainant should be entitled to the interposition of a Court of Equity to be relieved against said judgment? 5th. ground.

Because said complainant, by her bill of complaint, calls upon the defendants to interplead in a matter that is determined by a trial and judgment of this Court, and an action now pending on the appeal at Law. If it were not for the charge in the bill, as to the payment of the judgment in favour of Thompson, then there might be some doubt as to the propriety of going against him in this proceeding, for his rights would be protected by the judgments ; but if his judgment has been in fact paid off, it ceases to afford him this protection.

And as to the suit in favour of Glauten, it is now pending on the appeal, and so far as any rights may have accrued to him by reason of the judgment on the first trial, they are all taken away by the appeal, and the complainant lias as much right to defend herself against said suit as if no judgment had ever been obtained, and the very fact that two judgments have been obtained against complainant for the same debt, goes to show that she is in imminent danger of being compelled to pay it twice, and whether it is properly such a case as in which the defendants can be compelled to interplead, the complainant is certainly entitled to the interposition of this Court, for the purpose of obtaining a discovery to enable her to defend herself against this seemingly unjust litigation.

It is therefore ordered, that the demurrer be overruled, and that the defendants be required to answer within four months. WILLIAM EZZARD, j. s. c. c, c.