O.C.G.A. § 23-1-4 (2019)

Annotations

JUDICIAL DECISIONS It will be readily seen from this section that, if the law itself provides a full and adequate remedy, ordinarily that is the end of the matter, and equity will not interfere. Grimmett v. Barnwell, 184 Ga. 461, 192 S.E. 191 (1937). Equity grants no relief to one who has an adequate remedy at law. Goodman v. Georgia R.R. Bank & Trust Co., 221 Ga. 396, 144 S.E.2d 764 (1965). When private property is actually about to be confiscated by the enforcement of an assessment for a local improvement, the remedy of affidavit of illegality as provided in the city charter is not as complete or effectual as equitable relief; in such a case an injunction may be granted. Holst v. City of La Grange, 175 Ga. 402, 165 S.E. 217 (1932). A mere privilege to a party to sue at law, or the existence of a common-law remedy not as complete or effectual as the equitable relief, does not deprive equity of jurisdiction. Quitman Cooperage Co. v. People’s First Nat’l Bank, 178 Ga. 90, 172 S.E. 17 (1933). A money judgment having been rendered in a trover suit pending bankruptcy proceedings voluntarily instituted by the defendant therein, the petition brought by the defendant to enjoin garnishment proceedings based on the trover judgment on the ground that the debt had been subsequently discharged by the order of the bankruptcy court, should have been dismissed on general demurrer (now motion to dismiss); because, if the debt was discharged, the defendant could have been fully protected by setting up this defense in the court where the garnishment case was pending and where he had an adequate and complete remedy at law, in which event a court of equity will not grant relief; and because a judgment for the plaintiff in an action of trover, although rendered for a sum of money and not for the property in controversy, constitutes an adjudication of the plaintiff ’s title to the property, and the debt thus created is not dischargeable in bankruptcy. Nash

Loan Co. v. Yonge, 182 Ga. 672, 186 S.E. 811 (1936). When a defendant has been served and a judgment is rendered against the defendant by fraud, accident, or mistake, without fault or negligence on the defendant’s part, a petition in equity to set aside the judgment will lie. Dollar v. Fred W. Amend Co., 184 Ga. 432, 191 S.E.2d 696 (1937). If for any special reason the remedy by attachment against a nonresident debtor in an ordinary claim ex contractu or ex delicto is unavailable or inadequate, equity will lend its aid; but, when in such an ordinary claim the remedy by attachment is available and affords adequate relief, and when the facts alleged fail to invoke any other recognized principle authorizing equitable relief, a court of equity will refuse to assume jurisdiction. Grimmett v. Barnwell, 184 Ga. 461, 192 S.E. 191 (1937). Petition to have defendant enjoined from interfering with plaintiffs in possession of disputed part of land, possession and control of which was alleged to be in defendant, showed no ground for equitable relief, and the existence of an adequate remedy at law because a court of equity will not ordinarily entertain a bill solely for the purpose of establishing the title of a party to real estate, or for the recovery of possession thereof, as these objects can generally be accomplished by an action of ejectment at law. Slaughter v. Land, 190 Ga. 491, 9 S.E.2d 754 (1940). When the plaintiff contends all partnership relations between the plaintiff and the defendant have come to an end, that a balance has been struck, and that an indebtedness is allegedly due by the defendant to the plaintiff, which cannot be affected by any transactions between the partnership and its creditors or debtors, this is not an equitable action by a member of a firm against one’s copartner, but an action of law, one man against another who has formerly been one’s partner, upon an indebtedness a part of which grew out of the formerly existing partnership be-

tween them. Manry v. Hendricks, 192 Ga. 319, 15 S.E.2d 434 (1941). When the partnership has been fully dissolved by written contract and the rights of each party definitely established, in case of a breach of such contract equity will not order an accounting as the remedy is at law. Manry v. Hendricks, 192 Ga. 319, 15 S.E.2d 434 (1941). Even if in any case equity can remove an executor, when there were no allegations in petition seeking inter alia removal of an executor for fraud and conspiracy tending to show why complainants could not by pursuing the remedy provided by law before the court of ordinary (now probate court), obtain relief as complete and effectual as in a court of equity, under the principle codified in this section, equity would not assume jurisdiction. Georgia Baptist Orphans Home v. Weaver, 193 Ga. 669, 19 S.E.2d 272 (1942). When plaintiff alleges that the plaintiff provided certain labor and materials used in the construction of an apartment house under a contract with the subcontractor of the general contractor, for which the plaintiff has not been paid, and alleges no reason why the plaintiff ’s remedy at law, suit on the contract, would not be adequate, full, and complete, nor does the plaintiff allege that the subcontractor is insolvent or unable in any way to respond in damages, or is a nonresident of the state, the trial court did not err in sustaining the general demurrer (now motion to dismiss). Maggi v. Sylvan Circle Apts., Inc., 207 Ga. 580, 63 S.E.2d 368 (1951). When the petitioner sought to have an ordinance declared void, and the prosecutions enjoined, and by an amendment to the charter disputed tax executions may be contested by affidavit of illegality, this adequate and complete remedy at law to contest the validity of the ordinance being available, the intervention of equity would not be authorized. City of Eatonton v. Peck, 207 Ga. 705, 64 S.E.2d 61 (1951). A bare threat of injury to property, which, if followed up by an overt act would work irreparable injury, affords no basis for equitable relief by injunction or otherwise. Nottingham v. Elliott, 209 Ga. 481, 74 S.E.2d 93 (1953).

Equity grants no relief to one who has an adequate and complete remedy at law for the redress of an actionable wrong. Mayor of Carrollton v. Chambers, 215 Ga. 193, 109 S.E.2d 755 (1959). Since the plaintiff had an adequate and complete remedy at law by affidavit of illegality, an affidavit of illegality, and not a petition for injunction, was the procedure which the plaintiff should have employed to test the validity of property tax assessments. Mayor of Carrollton v. Chambers, 215 Ga. 193, 109 S.E.2d 755 (1959). Insolvency of a subcontractor and inability to respond to such damages as the contractor might recover for breach of the contract is ground for equitable intervention. By bringing in the surety whose principal was insolvent the contractor would be able to obtain full relief, but the contractor’s legal remedy would not be complete or as effective and efficient to the ends of justice as that which could be afforded by a court of equity. Concrete Coring Contractors v. Mechanical Contractors & Eng’rs, 220 Ga. 714, 141 S.E.2d 439 (1965). In the absence of statutory authority, equity will not intervene when a party has a complete and adequate remedy at law and no other equitable reasons, such as avoidance of a multiplicity of suits or that the acts of the defendant complained of constitute a constantly recurring wrong, generally denominated a continuing wrong, are alleged. Womble v. State Bd. of Exmrs., 221 Ga. 457, 145 S.E.2d 485 (1965). When an adequate remedy at law exists, equity is without jurisdiction of the case. Y. v. S., 224 Ga. 352, 162 S.E.2d 321 (1968). Equitable relief is improper if the complainant has a remedy at law which is ‘‘adequate,’’ i.e., as practical and as efficient to the ends of justice and its prompt administration as the remedy in equity. Sherrer v. Hale, 248 Ga. 793, 285 S.E.2d 714 (1982). Equity will grant relief only when there is no available adequate and complete remedy at law. Cantrell v. Henry County, 250 Ga. 822, 301 S.E.2d 870 (1983). 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 that 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 subsequent to the court’s order of payment of a sum of money into the court registry, the jury awarded a judgment in that amount to the plaintiff, as the plaintiff had an adequate remedy at law, the equitable relief granted by the trial court was inappropriate. Prosser v. Hancock Bus Sales, Inc., 256 Ga. 399, 349 S.E.2d 460 (1986). 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). Injunction requiring a bank to pay certain funds into a trial court’s registry was inappropriate because a lender had an adequate remedy at law since it could obtain a judgment to completely compensate it for any loss from the bank’s removal of funds from a debtor’s account. Century Bank of Ga. v. Bank of Am., N.A., 286 Ga. 72, 685 S.E.2d 82 (2009). An employer whose employee had opened a competing business and taken the employer’s trade secrets and confidential information had an adequate and complete remedy at law because it could recover money damages from the employee if the employee removed funds

from the employee’s competing business that rightfully belonged to the employer. Therefore, under O.C.G.A. §§ 9-5-6 and 23-1-4, a trial court erred in requiring the employee to deposit the business’s funds into the registry of the court. Coleman v. Retina Consultants, P.C., 286 Ga. 317, 687 S.E.2d 457 (2009). Mere apprehension of danger, unless founded upon reason, will not require equitable relief. Maggi v. Sylvan Circle Apts., Inc., 207 Ga. 580, 63 S.E.2d 368 (1951). 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). A mere verbal claim to, or assertion of ownership in, property is not such a cloud upon the title of the owner as can be removed by equitable proceedings. Nottingham v. Elliott, 209 Ga. 481, 74 S.E.2d 93 (1953). A remedy at law, to exclude appropriate relief in equity, must be complete and the substantial equivalent of the equitable relief. - It is not enough that there is a remedy at law. It must be plain and adequate, or, in other words, as practical and as efficient to the ends of justice and its prompt administration as the remedy in equity. Davis v. Logan, 206 Ga. 524, 57 S.E.2d 568 (1950). In a case arising from a mortgage fraud scheme, the government unsuccessfully argued that a title insurance company was not entitled to a constructive trust because it had an adequate remedy at law based on the Attorney General’s authority, pursuant to 21 U.S.C. § 853(i)(1), to remit a forfeiture in the interest of justice. Not only was the § 853(i)(1) remission a non-judicial remedy left entirely to the discretion of the Attorney General, but under O.C.G.A. § 23-1-4, equitable remedies, such as constructive trusts, were not precluded by the existence of an alternate remedy that was not as complete or effectual as the equitable relief. United States v. Shefton, 548 F.3d 1360 (11th Cir. 2008). An unconstitutional or void statutory provision will not furnish an adequate remedy at law. Stinson v. Manning, 221 Ga. 487, 145 S.E.2d 541 (1965).

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). 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). Property owners dissatisfied with the act of a building inspector in issuing a permit to erect a church have the right to appeal from the order of the building inspector to the board of adjustment. Ledbetter v. Callaway, 211 Ga. 607, 87 S.E.2d 317 (1955). 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). A court of equity will not ordinarily entertain a bill solely for the purpose of establishing title of a party to real estate, or for the recovery of possession thereof, as these objects can generally be accomplished by an action of ejectment of law. Collier v. Garner, 177 Ga. 467, 170 S.E. 353 (1933); Nottingham v. Elliott, 209 Ga. 481, 74 S.E.2d 93 (1953). Except in a case specially provided for by statute, equity will not interfere to restrain a trespass, unless the injury is irreparable in damages, or the trespasser is insolvent, or there exist other circumstances which, in the discretion of the court, render the interposition of this writ necessary and proper. Collier v. Garner, 177 Ga. 467, 170 S.E. 353 (1933); Nottingham v. Elliott, 209 Ga. 481, 74 S.E.2d 93 (1953). When a petition does not allege facts showing irreparable damages nor any trespass by the defendant upon any lands claimed by the petitioner, nor that the defendant is insolvent, and does not show why a court of equity should take jurisdiction in order to avoid multiplicity of action, the petition failed to state a cause of action for any equitable relief. Shobkov v. Pennington, 217 Ga. 315, 122 S.E.2d 87 (1961).

Rezoning must be sought before constitutionality of ordinance considered. - Before litigants seek declaration by court of equity that zoning ordinance is unconstitutional as applied to their property, they must apply to the local authorities for relief by rezoning. Village Ctrs., Inc. v. DeKalb County, 248 Ga. 177, 281 S.E.2d 522 (1981). Time limit on filing suit challenging zoning ordinance. - Not only is application for rezoning a prerequisite to filing suit in equity seeking declaration that zoning ordinance is unconstitutional, but, after application for rezoning is denied by governing authority, any suit in equity attacking zoning ordinance as applied to property involved is time barred when no suit challenging zoning classification is filed within 30 days of that decision. Village Ctrs., Inc. v. DeKalb County, 248 Ga. 177, 281 S.E.2d 522 (1981). Restrictive covenant cases. - An injunction will lie in restrictive covenant cases by employers against former employees even when damages are also sought. National Settlement Assocs. v. Creel, 256 Ga. 329, 349 S.E.2d 177 (1986). 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). Cited in Bowden v. Georgia Pub. Serv. Comm’n, 170 Ga. 505, 153 S.E. 42 (1930); American Sec. Co. v. Miller, 173 Ga. 82, 159 S.E. 692 (1931); Reid v. Gordon, 173 Ga. 168, 159 S.E. 708 (1931); Sutton v. Adams, 180 Ga. 48, 178 S.E. 365 (1934); Gavant v. Berger, 180 Ga. 753, 180 S.E. 613 (1935); Jackson v. Becker Roofing Co., 180 Ga. 769, 180 S.E. 822 (1935); Pendley v. Tumlin, 181 Ga. 808, 184 S.E. 283 (1936); Hodges v. State Revenue Comm’n, 183 Ga. 832, 190 S.E. 36 (1937); Wallace v. Stovall, 189 Ga. 195, 5 S.E.2d 635 (1939); Bibb County v. Winslett, 191 Ga. 860, 14 S.E.2d 108 (1941); McCord v. Walton, 192

Ga. 279, 14 S.E.2d 723 (1941); Matson v. Crowe, 193 Ga. 578, 19 S.E.2d 288 (1942); Stephens v. City Council, 193 Ga. 815, 20 S.E.2d 80 (1942); Cummings v. Robinson, 194 Ga. 336, 21 S.E.2d 627 (1942); Robinson v. Murray, 198 Ga. 690, 32 S.E.2d 496 (1944); Dwyer v. Jones, 201 Ga. 259, 39 S.E.2d 313 (1946); Fulmer v. Wilkins, 201 Ga. 322, 39 S.E.2d 405 (1946); Haney v. Sheppard, 207 Ga. 158, 60 S.E.2d 453 (1950); Ware v. Martin, 207 Ga. 512, 63 S.E.2d 335 (1951); Scarbrough v. Cook, 208 Ga. 697, 69 S.E.2d 201 (1952); Williamon v. Williamon, 209 Ga. 494, 74 S.E.2d 71 (1953); Boatright v. Yates, 211 Ga. 125, 84 S.E.2d 195 (1954); Patterson v. Boyd, 211 Ga. 679, 87 S.E.2d 861 (1955); Winn v. Morton, 212 Ga. 282, 92 S.E.2d 97 (1956); Hortman v. Yarbrough, 214 Ga. 693, 107 S.E.2d 202 (1959); Ramsey v. Womack, 214 Ga. 722, 107 S.E.2d 180 (1959); Ellis v. City of Atlanta, 214 Ga. 811, 108 S.E.2d 269 (1959); Ayers v. Baker, 216 Ga. 132, 114 S.E.2d 847 (1960); K. Gordon Murray Prods., Inc. v. Floyd, 217 Ga. 784, 125 S.E.2d 207 (1962); Stein

Steel & Supply Co. v. Briggs Mfg. Co., 219 Ga. 779, 135 S.E.2d 862 (1962); Murdock v. Perkins, 219 Ga. 756, 135 S.E.2d 869 (1964); Clements v. Elder, 221 Ga. 438, 145 S.E.2d 246 (1965); Parker v. Davidson, 223 Ga. 672, 157 S.E.2d 489 (1967); Burch v. Williams, 226 Ga. 10, 172 S.E.2d 417 (1970); Jonesboro Area Athletic Ass’n v. Dickson, 227 Ga. 513, 181 S.E.2d 852 (1971); Burnham v. Lynn, 235 Ga. 207, 219 S.E.2d 111 (1975); Allsouth Sprinkler Co. v. Network Bldg. Sys., 238 Ga. 372, 233 S.E.2d 174 (1977); City of Atlanta v. Wolcott, 240 Ga. 244, 240 S.E.2d 83 (1977); Liniado v. Alexander, 199 Ga. App. 256, 404 S.E.2d 602 (1991); Mayor & Council v. Hall, 261 Ga. 681, 410 S.E.2d 105 (1991); Powell v. City of Snellville, 266 Ga. 315, 467 S.E.2d 540 (1996); City of Duluth v. Riverbrooke Properties, Inc., 233 Ga. App. 46, 502 S.E.2d 806 (1998); McBride v. Life Ins. Co., 190 F. Supp. 2d 1366 (M.D. Ga. 2002); Paine v. Nations, 301 Ga. App. 97, 686 S.E.2d 876 (2009); Sanders v. Riley, 296 Ga. 693, 770 S.E.2d 570 (2015).

RESEARCH REFERENCES Am. Jur. 2d. - 27 Am. Jur. 2d, Equity, §§ 10, 89. C.J.S. - 30 C.J.S., Equity, § 89. ALR. - Constitutionality of statute conferring on chancery courts power to

abate public nuisance, 22 A.L.R. 542; 75 A.L.R. 1298. Injunction against exercise of power of eminent domain, 93 A.L.R.2d 465.