Opinion
14978.
OCTOBER 7, 1944.
Cancellation, etc. Before Judge Hendrix. Fulton superior court. June 21, 1944.
Neely, Marshall Greene, for plaintiff.
J. D. Tindall, Clint W. Hager, and J. F. Kemp, for defendant.
Equity will not enjoin a suit in a court of law at the instance of a defendant therein in order to cancel an agreement which forms the basis of the action, the ground for cancellation being that such agreement had been satisfied by a subsequent one between the parties, which had been fully performed.
No. 14978. OCTOBER 7, 1944.
On February 2, 1944, Henry N. Alford filed in Fulton superior court an equitable petition against Martha B. Alford, his former wife, for the cancellation of a certain contract between them respecting alimony, made on April 29, 1933, at or about the time a divorce action was pending, and to enjoin and restrain her from prosecuting an action she had filed against him in the civil court of Fulton County to recover alleged unpaid alimony in accordance with said contract. The contract provided that the agreement so entered into was not to be made the judgment of the court in any divorce or alimony proceeding, but that all claims and demands of Mrs. Alford for alimony should be regarded as being dismissed. By the terms of this contract, Mrs. Alford was to have the custody of the three children and was to be paid the sum of $125 per month as alimony, subject to the following conditions, to wit: In the event of the death of any of the children (aged 14, 13, and 8 years) before the death or remarriage of their mother, the monthly payment should be reduced $25 for each deceased child, and as each child reached the age of twenty-one years or became self-supporting or married, the payment of alimony should be reduced each month $25; and in the event of the remarriage of Mrs. Alford during the minority of any of the children and while any of them were not self-supporting or married, then the monthly sum to be paid to her for her personal support should be reduced $50 per month.
Alford alleged that the oldest child came to his home in the year 1933, more than ten years prior to the filing of the suit in the civil court of Fulton County for alleged unpaid alimony; that the next oldest child came to his home in 1934, approximately ten years before Mrs. Alford filed said suit against him, and that both of said children have since been maintained and supported by him; that Ruth Claire, the youngest child, remained in the custody of Mrs. Alford until August, 1940, when Mrs. Alford made the proposal, which was accepted by him, that if he would receive Ruth Claire into his custody and control, maintain her, and furnish her with such schooling as she would accept, she, Mrs. Alford, would thereupon deliver up and cancel the contract for alimony and support of the children; and that he now has the custody of said Ruth Claire and is maintaining and educating her. He alleged that he was entitled to recover from Mrs. Alford all the money paid by him to her during the time he had custody and control of the two older children, and sought a recovery against her and an accounting, which he averred should be for at least $50 per month as overpayment, under the terms of the agreement of August, 1940, wherein she agreed to deliver up and cancel the alimony contract made in 1933; but that she now refuses to deliver to him said contract. He sought judgment against her for $2700. He further alleged that the civil court of Fulton County is without jurisdiction to entertain an equitable petition and counterclaim for cancellation and accounting in the suit now pending in that court.
Mrs. Alford demurred to the petition on various grounds, grounds 1, 2, 3, and 4 being as follows: that the petition did not set forth a cause of action; that the allegations do not warrant the relief prayed for; that there is no equity in the petition; and that the allegations show on their face that the petitioner has a complete and adequate remedy at law. These grounds of demurrer were sustained, the petition was dismissed, and Alford excepted.
Counsel for the plaintiff in error say in their brief that they are not insisting upon any recovery for the overpayment referred to in the petition. This leaves for consideration only the question whether or not the plaintiff in error is entitled to any of the equitable relief prayed for. If he can obtain complete and adequate relief in the suit now pending between the parties in the civil court of Fulton County, then the door of equity is not open to him. His suit sets out that the contract under which Mrs. Alford is suing him in the civil court of Fulton County has been satisfied by a subsequent agreement, which has been fully performed. This is a defense which he could make in that court under a plea of accord and satisfaction. Code, § 20-1201. Hence, although that court is without jurisdiction to order cancellation, it has full power to grant the plaintiff in error, in the suit now pending therein, all the relief to which he is entitled; and this being true, there is no ground for the exercise of equity's jurisdiction. Webb-Harris Auto. Co. v. Industrial Acceptance Corp., 164 Ga. 54 ( 137 S.E. 770); American Security Co. v. Miller, 173 Ga. 82 ( 159 S.E. 692); Penn Mutual Life Ins. Co. v. Childs, 189 Ga. 835 ( 7 S.E.2d 907).
Counsel's brief contains the further statement that the basis for the equitable intervention is not only for the cancellation of the original agreement, but is also to prevent a multiplicity of suits. An examination of the petition does not bear out this statement. Relief is not sought on the idea of preventing a multiplicity of suits; nor does the petition contain an allegation that the defendant threatens or intends to file other suits against him. The petition was properly dismissed.
Judgment affirmed. All the Justices concur.