Opinion
16360.
OCTOBER 11, 1948.
Action for damages. Before Judge Andrews. Fulton Superior Court. June 29, 1948.
J. V. Poole, E. A. Wright, and Clifford Oxford, for plaintiff.
Heyman, Howell Heyman, and Morris B. Abram, for defendant.
Three minors, suing by next friend, brought a suit for damages against a railroad, alleging, among other things, that their father had been negligently killed by the railroad; that prior to the death of their father their mother had died, and their father had then remarried; that after the death of their father, the railroad contacted their stepmother, and "fraudulently settled whatever interest she may have had in the value of the life of the said Charles G. Odom, by paying her the sum of $175, and also fraudulently settled, in so far as they could, the claims of the three minors, thereby perpetrating a fraud on the said minors." The plaintiffs prayed only for (a) process, and (b) a money judgment. Held:
1. This is an action for damages. The plaintiffs do not seek to set aside a contract; nor do they seek any other form of equitable relief. The allegations as to alleged fraudulent acts offer no reason whatever for conferring jurisdiction of the writ of error on this court. "Whether a petition is based upon an equitable or a legal cause of action depends upon the nature of the relief sought, as shown by the prayers, which indicate whether the alleged cause of action is intended by the pleader as founded upon equitable or legal principles. Steed v. Savage, 115 Ga. 97 ( 41 S.E. 272). To make a case in equity, the allegations of the petition must be applicable to the equitable relief prayed, and there must be a prayer either for the specific relief prayed, or for general relief. Copeland v. Cheney, 116 Ga. 685 ( 43 S.E. 59). Whether a petition states an equitable or a legal cause of action depends upon the relief prayed. Fowler v. Davis, 120 Ga. 442 ( 47 S.E. 951)." Bernstein v. Fagelson, 166 Ga. 281, 286 ( 142 S.E. 862). This court being without jurisdiction of the writ of error (Code, §§ 2-3708), it is
Transferred to the Court of Appeals. All the Justices concur, except Bell, J., absent on account of illness.