Opinion
14745.
FEBRUARY 8, 1944.
Equitable petition. Before Judge Franklin. Richmond superior court. September 9, 1943.
Pierce Brothers, for plaintiff.
Cumming, Harper Nixon, Osgood O. Williams, and Hawes Cloud, for defendants.
The allegations and prayers of the petition do not set forth any grounds to confer jurisdiction in this court to review the case; but if it sets forth any cause of action, it is one at law for a common-law judgment, and the case is transferred to the Court of Appeals.
No. 14745. FEBRUARY 8, 1944.
On May 12, 1930, Ed White commenced to make deposits in the savings department of the Georgia Railroad Bank Trust Company of Richmond County (hereinafter referred to as the drawee bank), and died on March 31, 1941. The total deposited was $7,247.33. On March 29, 1943, H. F. White, administrator of Ed White's estate, filed a petition in the superior court of Richmond County against the drawee bank, The Farmers Bank of Union Point in Greene County, and T. E. Beazley, a resident of Taliaferro County.
The exception is to an order sustaining the general demurrer of the drawee bank, and dismissing the action in so far as that bank was concerned.
The petition alleged substantially the following: On March 28, 1941, Beazley took to The Farmers Bank a check drawn on the Georgia Railroad Bank Trust Company, which purported to bear the signature of Ed White, but which was otherwise blank, and thereupon The Farmers Bank with a typewriter, inserted the name of T. E. Beazley, and with a check protector, the sum of $7000. At the time the check was purported to have been signed, Ed White was on his death bed; and he died three days later. He was not in his right mind, and was not physically or mentally in a condition to transact any business. The name of Ed White was written on the check by Beazley holding the hand of Ed White and guiding it. The signature of Ed White was not written by him, and was not his act, and Beazley knew it was not Ed White's signature when he took the check to the bank. The bank also knew that the check did not bear the signature of Ed White, but aided Beazley in sending the same to the drawee bank for collection; and when it was received by the drawee bank, that bank knew that the signature was not that of Ed White, but nevertheless it paid the check. The drawee bank was grossly negligent in paying the check, when, by proper investigation, it would have ascertained the physical and mental condition of Ed White, and such investigation would also have developed that the signature was not the genuine signature of Ed White. The signature on the check was such a scrawl as to put the drawee bank on notice that the same was not the genuine check of Ed White. A notation, "phoned Beazley," was on the check and this within itself showed that the suspicions of the drawee bank were aroused, and had it thoroughly investigated the conditions surrounding the drawing of the check, it would have found out the truth. The drawee bank, The Farmers Bank, and Beazley acted jointly and in co-operation with each other in withdrawing the $7000 which the drawee bank had on deposit. The check was the only one that had ever been charged to Ed White's account, and by reason of that fact it was incumbent on the drawee bank to exercise care and caution, and to investigate and be sure that a check for that amount was genuine; but this it wholly failed to do, and paid out practically the full amount standing to the credit of Ed White on a check which was not his act and deed. An itemized statement of the deposits was contained in the petition, and the purported check was attached as an exhibit.
The prayers were for a judgment against the defendants for $7,247.33, and interest; that they be required to restore the sum of $7000 to the credit of Ed White in the drawee bank, and thereupon that the drawee bank be required to pay the entire amount on deposit to the petitioner as administrator of Ed White's estate; that second originals be served on the non-resident defendants; and for process and general relief.
The drawee bank demurred on the ground that "there is no cause of action set forth, for that the petition shows on its face that the plaintiff's intestate, Ed White, signed the check in the amount of . . $7000, to recover which the suit is brought; and that there is no allegation of knowledge of this defendant that the said Ed White did not have the capacity to sign a check on his account in this defendant's bank."
(After stating the foregoing facts.) The petitioner alleged that he had no adequate remedy at law; and the prayers were for process, for second originals to be issued and served, for judgment, for general relief, and "that defendants be required to restore the sum of $7000 to the credit of said Ed White in the Georgia Railroad Bank and Trust Company, and thereupon the Georgia Railroad Bank and Trust Company be required to pay the entire amount on deposit to petitioner as administrator of said Ed White."
Whether this court has jurisdiction of the case, within the meaning of the constitutional provision as contained in the Code, § 2-3005, depends on whether or not this is an "equity case." This must be determined from the allegations and prayers of the petition. Bernstein v. Fagelson, 166 Ga. 281, 287 ( 142 S.E. 862); O'Callaghan v. Bank of Eastman, 180 Ga. 812, 817 ( 180 S.E. 847); Henderson v. Curtis, 185 Ga. 390 ( 195 S.E. 152). If either the petition or the prayer is imbued or impregnated with an equitable tinge, it must be found in that portion of the prayer wherein it is prayed "that defendants be required to restore the sum of $7000 to the credit of said Ed White in the" bank. But this is a prayer for relief to compel a party to perform an act which could not be granted. Code, § 55-110; Rudolph Wurlitzer Company v. Jackson, 134 Ga. 333 ( 67 S.E. 879); Florida Central Railroad Co. v. Cherokee Sawmill Co., 137 Ga. 815 (5) ( 74 S.E. 523); Georgia Power Co. v. City of Rome, 172 Ga. 14 (8) ( 157 S.E. 283). On the other hand, such relief, if granted, would be less effective than rights that would be acquired under a common-law judgment. The suit is for the purpose of recovering money. In Lexington Presbyterian Church v. Reid, 147 Ga. 225 ( 93 S.E. 208), the question made was whether the Supreme Court had jurisdiction to review the judgment, one of the prayers being "that petitioner have a decree against the defendants, requiring them to carry out with petitioner the terms of their said contract." In that case, which was transferred to the Court of Appeals, this court said: "The only term of the defendants' contract which they could be required to carry out is their obligation to pay the agreed purchase-price of the petitioner's stock sold to them; and no way occurs to us to force the defendants to comply with such term, except by judgment against them to be enforced by execution." Where complete relief can be secured by a common-law judgment, equitable table jurisdiction can not be acquired by incorporating a prayer "that defendants be required to restore [the amount sued for] to the credit of [plaintiff]." Nor does the fact that one of the defendants is a bank make a case in equity by reason of such a prayer. If so, then any suit against a bank could be converted into an equity case merely by following a prayer for judgment with an additional prayer that the bank give credit to petitioner for the amount claimed. "The prayer for general relief and the invocation of the powers of a court of equity to grant such relief, to protect the rights of the plaintiff, and to afford to the plaintiff complete relief, in the absence of averments which show that the plaintiff is entitled to equitable relief, do not make the case one in equity. Burress v. Montgomery, 148 Ga. 548 ( 97 S.E. 538)." Mulherin v. Neely, 165 Ga. 113 ( 139 S.E. 820).
If the averments of the petition set forth any cause of action, it is one at law, and not in equity; and consequently the Court of Appeals has jurisdiction to review this case, and not this court; and the case is transferred to that court.
Transferred to the Court of Appeals. All the Justices concur.