O.C.G.A. § 23-1-3 (2019)

Annotations

JUDICIAL DECISIONS Universal test of the jurisdiction of a court to issue injunctions is the absence of a legal remedy by which the complainant might obtain the full relief to which the facts and circumstances entitle the complainant, and this is likewise the test of its power to restrain breaches of a contract. Ford v. Finney, 35 Ga. 258 (1866); Chadwick v. Dolinoff, 207 Ga. 702, 64 S.E.2d 76 (1951). Equity will grant relief only when there is no available and adequate and complete remedy at law. Colston v. Hutchinson, 208 Ga. 559, 67 S.E.2d 763 (1951); Cantrell v. Henry County, 250 Ga. 822, 301 S.E.2d 870 (1983). In a breach of contract action between an insurer and an agency, the trial court did not abuse the court’s discretion in granting an interlocutory injunction to the agency as, after a balancing of the equities in the agency’s favor, the record supported the finding that the insurer conducted itself, to the agency’s detriment, as though arbitration of the dispute had been completed and it had been absolved from complying with its post-termination obligations under the underlying agency agreement between the parties. Cotton States Mut. Ins. Co. v. Stephen Brown Ins. Agency, Inc., 290 Ga. App. 660, 660 S.E.2d 445 (2008), cert. denied, No. S08C1321, 2008 Ga. LEXIS 687 (Ga. 2008). When all relief sought can be obtained in the manner provided for by law, it is error for equity to intervene. Waller v. Conner, 218 Ga. 633, 129 S.E.2d 845 (1963); Thomason v. Harper Motor Lines, 225 Ga. 312, 168 S.E.2d 147 (1969). Equity by writ of injunction will re-

strain any act which is illegal or contrary to equity and good conscience and for which no adequate remedy at law is provided. But when all the relief sought can be obtained in the manner provided by law, a suit in equity for injunction will not lie. Lanier v. Suttles, 212 Ga. 154, 91 S.E.2d 21 (1956). Injunction does not lie when the complaining party has a plain and adequate remedy at law which is practical and efficient to the ends of justice and its prompt administration as the remedy in equity. Thomason v. Harper Motor Lines, 225 Ga. 312, 168 S.E.2d 147 (1969). Since equity jurisdiction is for the relief of parties when the general rules of law would be deficient in protecting from anticipated wrong or affording relief for injuries done, there is no sound reason in law or equity why equity should not take jurisdiction and grant relief from a void marriage complained of that will be both adequate and complete. Gearllach v. Odom, 200 Ga. 350, 37 S.E.2d 184 (1946). When no legal reason appears from the allegations of the petition why the plaintiff, without seeking an injunction, is not possessed of an adequate and complete remedy at law; in the absence of such indispensable averments, the petition fails to state a proper cause for the extraordinary equitable remedy of injunction. Chadwick v. Dolinoff, 207 Ga. 702, 64 S.E.2d 76 (1951). Equitable relief is inappropriate when an adequate and complete remedy at law in the form of an action in implied assumpsit or quasi-contract was and is available against a party, the record and the order of the trial court suggest that a

money judgment against the party would provide complete relief with respect to the party, and the record fails to disclose affirmatively that such a remedy would not be adequate. Cantrell v. Henry County, 250 Ga. 822, 301 S.E.2d 870 (1983). When a statutory remedy by appeal has failed to eliminate the law violation or gross abuse of discretion which is its equivalent, equity will grant relief. Carter v. Board of Educ., 221 Ga. 775, 147 S.E.2d 315 (1966). When, upon the death of the grantee in a deed executed by a married woman, a receiver is appointed for the property belonging to his estate, and the grantor in such a deed intervenes in the equitable proceeding for the purpose of asserting her right to recover the property so conveyed to the decedent, and mesne profits thereon, upon the ground that the conveyance was made in satisfaction of the debt of her husband, the proceeding is one in equity and is governed by equitable principles. In such a case the intervenor cannot recover against the assets in the hands of the receiver for administration in equity, without accounting for such portion of the consideration for her deed as was represented by her own obligation. Turner v. Warren, 193 Ga. 455, 18 S.E.2d 865 (1942). Courts exercising equitable jurisdiction will not enjoin prosecutions under municipal ordinances, even when the ordinances are allegedly invalid and there are threats of arrest and multiplicity of prosecutions, unless it is shown that the threatened prosecutions are for the sole purpose of unlawfully taking or destroying property or the business of the plaintiff, or that they will in fact result in irreparable injury thereto, and unless the complaining party has no plain and adequate remedy at law which is as practical and efficient to the ends of justice and its prompt administration as its remedy in equity. Arnold v. Mathews, 226 Ga. 809, 177 S.E.2d 691 (1970). Statement that decisions of the boards of education will not be interfered with by courts of equity unless they amount to a violation of law or are a gross abuse of discretion must be read and considered along with the rule of law that remedies at

law, if adequate, must be exhausted before resort to equity will be allowed; when thus construed they mean simply that, when the remedy by appeal has failed to eliminate the law violation or gross abuse of discretion which is its equivalent, equity will grant relief or, as is permissible in all cases to prevent irreparable injury, or when equity alone can grant adequate relief, exhaustion of the statutory remedy of appeal is not a prerequisite to relief in equity. Bedingfield v. Parkerson, 212 Ga. 654, 94 S.E.2d 714 (1956). When it is necessary to prevent irreparable injury or when equity alone can grant adequate relief, exhaustion of a statutory remedy of appeal is not a prerequisite to relief in equity. Carter v. Board of Educ., 221 Ga. 775, 147 S.E.2d 315 (1966). A court of equity should not exercise the court’s extraordinary powers when there is no grave danger of impending injury; bare fears of injury will not authorize such action. McPhaul v. Simon, 181 Ga. 260, 182 S.E. 19 (1935). Fact that repeated arrests and prosecutions may be instituted under an invalid ordinance will not, without more, justify equitable interference. Jewel Tea Co. v. City of Cartersville, 185 Ga. 799, 196 S.E. 712 (1938). The fact that a prosecution may be based on an invalid ordinance does not, in the absence of other circumstances, justify intervention of equity changing the general rule. Spur Distrib. Co. v. Mayor of Americus, 190 Ga. 842, 11 S.E.2d 30 (1940). Mere inconvenience and expense and apprehension of injury to property rights will not give equity jurisdiction; neither will mere general allegations of irreparable injury and deprivation of property rights. Spur Distrib. Co. v. Mayor of Americus, 190 Ga. 842, 11 S.E.2d 30 (1940). Mere financial inability to furnish the bond required affords no lawful basis for equitable interference. Grimmett v. Barnwell, 184 Ga. 461, 192 S.E. 191 (1937). As a general rule, equity will not decree specific performance of contracts relating to personal property.

Black v. American Vending Co., 239 Ga. 632, 238 S.E.2d 420 (1977). Only under exceptional facts and circumstances may equity powers be used to restrain criminal prosecutions, even though their defense may be burdensome and attended by inconvenience. Spur Distrib. Co. v. Mayor of Americus, 190 Ga. 842, 11 S.E.2d 30 (1940). When a petitioner seeking an equitable decree annulling a bigamous marriage asserts that he did not know at the time of the ceremony that the defendant was a married woman; he does not come into court with unclean hands barring him from equitable relief. Gearllach v. Odom, 200 Ga. 350, 37 S.E.2d 184 (1946). Although it is uncertain that there can be a successfully-maintained proceeding in equity to annul a marriage that, as a matter of law, is null and void already, the designation of the petition as one for annulment is no reason why a decree as prayed, declaring the marriage void, should not be granted, since such a decree is essential to the full protection of the petitioner from injury that is and well may be anticipated as a result of a void marriage ceremony. Gearllach v. Odom, 200 Ga. 350, 37 S.E.2d 184 (1946). Minor children may bring wrongful death action. - After a surviving spouse abandoned the minor children and could not be found, the factual circumstances demand the exercise of the court’s equitable powers to preserve the rights of the minor children. The trial court should have allowed these minors, who have no remedy at law, to maintain an action for the wrongful death of their mother. Brown v. Liberty Oil & Ref. Corp., 261 Ga. 214, 403 S.E.2d 806 (1991). When equity will enjoin foreclosure. - When one borrows a sum of money and executes a deed to an undivided interest in certain realty to secure the repayment of the loan, the lender has a right to foreclose upon and sell the undivided interest; and a court of equity will not, unless under peculiar circumstances, enjoin one against enforcement of the security deed, so as to allow the debtor

time to have the property partitioned. Ward v. Gerdine, 183 Ga. 722, 189 S.E. 588 (1937). Application of O.C.G.A. § 23-1-3 to the successor liability doctrine. - Corporate debtor that declared Chapter 11 bankruptcy was not liable to an LLC for unpaid rent that was owed by a lock and key company, even though the same individual owned both companies and the debtor had accepted collateral the lock and key company owned in full satisfaction of debt the company owed. The debtor’s decision to accept collateral the lock and key company owned in full satisfaction of the company’s debt was permitted under O.C.G.A. § 11-9-620 and was not a fraudulent attempt to avoid liabilities the lock and key company owed, the debtor was not a ‘‘mere continuation’’ of the lock and key company, and a contrary conclusion would have elevated form over substance and abridged the equitable principles that were codified in O.C.G.A. § 23-1-3. Acme Sec., Inc. v. CLN Props., LLC (In re Acme Sec., Inc.), 484 B.R. 475 (Bankr. N.D. Ga. 2012). Restraint of criminal prosecution. - Allegations of petition by filling station operators asking protection from the effect of a city ordinance requiring payment by certain operators for a business license, in addition to the regular business license required of all gasoline filling stations, when the city marshal had made and was threatening to make cases against the petitioners for violation of the ordinance, the city was threatening to issue executions against plaintiff ’s property for the penalties in the ordinance, and there was no charter provision for the filing of affidavits of illegality, did not make out such a case as would take it out of the general rule that equitable powers may not be used to restrain criminal prosecution in enforcement of a municipal ordinance alleged to be invalid. Spur Distrib. Co. v. Mayor of Americus, 190 Ga. 842, 11 S.E.2d 30 (1940). Courts of equity in this state are without authority to review decisions of football referees because those decisions do not present judicial controversies. Georgia High Sch. Ass’n v. Waddell, 248 Ga. 542, 285 S.E.2d 7 (1981).

Bond was adequate remedy at law for subcontractor on school project. - When a subcontractor on a school district’s high school project had a remedy against the general contractor on the general contractor’s performance bond under O.C.G.A. § 36-91-90, this legal remedy was adequate and precluded the subcontractor from asserting an equitable lien against the school district. McArthur Elec., Inc. v. Cobb County Sch. Dist., 281 Ga. 773, 642 S.E.2d 830 (2007). Adequate remedy at law. - Superior court erred in granting an aunt and uncle custody of minor children because the court lacked subject matter jurisdiction to consider the petition for custody since a probate court had exclusive jurisdiction to issue and revoke letters of testamentary guardianship, and O.C.G.A. § 29-2-4(b) mandated the issuance of letters of testamentary guardianship to the brother of the children’s father without notice and a hearing and without consideration of the children’s best interests; equity afforded no valid basis for the superior court’s exercise of jurisdiction because the aunt and uncle had an appropriate remedy in the probate court to challenge the testamentary guardianship: a petition for revocation or suspension of the brother’s letters of testamentary guardianship. Zinkhan v. Bruce, 305 Ga. App. 510, 699 S.E.2d 833 (2010). Court found no adequate remedy at law. - When an attorney-in-fact sought to enjoin the attorney-in-fact’s siblings from enforcing a revocation of their parent’s durable health care power of attorney, the attorney-in-fact did not have an adequate remedy at law through appointing an emergency guardian. Under O.C.G.A. § 29-4-14(b)(6), a petition for such an appointment had to set forth that no other person appeared to have authority to act, whereas the attorney-in-fact’s position was that the attorney-in-fact did have the authority to act. Luther v. Luther, 289 Ga. App. 428, 657 S.E.2d 574 (2008), cert. denied, No. S08C0912, 2008 Ga. LEXIS 520 (Ga. 2008). Specific performance properly applied. - Specific performance was the proper remedy since there was no adequate remedy at law given the nature of

the stock in the small, family-owned business, and the explicit acknowledgment in the shareholders’ buy-sell agreement that specific performance was the appropriate remedy in the event of a breach. Moreover, given the failure of all parties to strictly follow the terms of either the agreement or bylaws, an equitable remedy considered that done which ought to be done. Wallace v. Wallace, 345 Ga. App. 764, 813 S.E.2d 428 (2018), cert. denied, No. S18C1329, 2019 Ga. LEXIS 42, cert. denied, No. S18C1332, 2019 Ga. LEXIS 48 (Ga. 2019), cert. denied, 2019 U.S. LEXIS 6165, 205 L. Ed. 2d 30 (U.S. 2019). Equity improperly invoked in custody cases. - Trial court erred by invoking equity as a basis to grant custody of the twins to their biological mother because when the mother surrendered her parental rights to the twins the mother forfeited the mother’s custody rights to them, when the adoptive father adopted them the father gained the right to their custody, and the mother was not included within O.C.G.A. § 19-7-1(b.1)’s list of third parties permitted to seek custody against a parent when the mother filed her custody petition. Oni v. Oni, 351 Ga. App. 400, 830 S.E.2d 775 (2019), cert. denied, No. S19C1608, 2020 Ga. LEXIS 158 (Ga. 2020). Cited in Edwards Mfg. Co. v. Hood, 167 Ga. 144, 145 S.E. 87 (1928); Harper v. Durden, 177 Ga. 216, 170 S.E. 45 (1933); Aetna Ins. Co. v. Lunsford, 179 Ga. 716, 177 S.E. 727 (1934); Sutton v. Adams, 180 Ga. 48, 178 S.E. 365 (1934); Biddle v. Papa, 180 Ga. 468, 179 S.E. 357 (1935); Lewis v. Board of Educ., 183 Ga. 687, 189 S.E. 233 (1936); Manning v. Wills, 193 Ga. 82, 17 S.E.2d 261 (1941); Cummings v. Robinson, 194 Ga. 336, 21 S.E.2d 627 (1942); Hamrick v. Hamrick, 206 Ga. 564, 58 S.E.2d 145 (1950); Coffey v. City of Marietta, 212 Ga. 189, 91 S.E.2d 482 (1956); Hortman v. Yarbrough, 214 Ga. 693, 107 S.E.2d 202 (1959); Ayers v. Baker, 216 Ga. 132, 114 S.E.2d 847 (1960); Burch v. Williams, 226 Ga. 10, 172 S.E.2d 417 (1970); Hughes v. Albert, 238 Ga. 721, 235 S.E.2d 34 (1977); Pembroke State Bank v. Balboa Ins. Co., 144 Ga. App. 609, 241 S.E.2d 483 (1978); Cawthon v. Douglas County, 248 Ga. 760, 286 S.E.2d 30 (1982);

Brown v. Brown, 265 Ga. 725, 462 S.E.2d 609 (1995). RESEARCH REFERENCES Am. Jur. 2d. - 27 Am. Jur. 2d, Equity, §§ 19 et seq., 87. C.J.S. - 30 C.J.S., Equity, § 19 et seq. ALR. - Right of victim of practical joke to recover against its perpetrator, 9 A.L.R. 364. Jurisdiction of equity to protect personal rights, 14 A.L.R. 295. Constitutionality of statute conferring on chancery courts power to abate public nuisance, 22 A.L.R. 542; 75 A.L.R. 1298. Power of equity in absence of statute to render deficiency judgment in foreclosure action, 34 A.L.R. 1015. Relief of purchaser against forfeiture of land contract, 40 A.L.R. 182. Breach of building or construction contract as ground of suit in equity for its rescission, 52 A.L.R. 1175. Validity and enforceability of restrictive covenants in contracts of employment, 52 A.L.R. 1362; 67 A.L.R. 1002; 98 A.L.R. 963. Inherent power of equity, at instance of a stockholder, to appoint receiver for, or to wind up, a solvent, going corporation, on ground of fraud, mismanagement, or dissensions, 61 A.L.R. 1212; 91 A.L.R. 665. Relief in equity from mistake of law, 75 A.L.R. 896. Power of equity to enjoin prosecution of independent actions at law by different persons injured by the same tort, 75 A.L.R. 1444. Jurisdiction of equity on the ground of avoiding multiplicity of actions at law of

suit to enforce statutory liability of stockholders or to enjoin actions at law in that regard, 94 A.L.R. 1372. Jurisdiction of equity courts in the United States, without the aid of statute expressly conferring it, to entertain independent suit for alimony or separate maintenance without divorce or judicial separation, 141 A.L.R. 399. Right of lessee to equitable relief against forfeiture for breach of conditions as affected by lessor’s giving a lease to or entering into other contractual obligations with a third person, 166 A.L.R. 807. Remedy at law available to beneficiary of trust as exclusive of remedy in equity, 171 A.L.R. 429. Injunction as remedy for breach of contract to employ plaintiff or give exclusive right to promote or sell defendant’s product or invention, 173 A.L.R. 1198. Jurisdiction of equity to protect personal rights; modern view, 175 A.L.R. 438. Doctrine of constructive trust or unjust enrichment as applicable between owner and one who fraudulently procures tax certificates, 175 A.L.R. 700. Purchaser’s misrepresentations as to intended use of real property as ground for vendor’s equitable relief from contract and deed, 35 A.L.R.3d 1369. Construction and operation of parking-space provision in shopping-center lease, 56 A.L.R.3d 596. Right of contingent remainderman to maintain action for damages for waste, 56 A.L.R.3d 677.