O.C.G.A. § 23-1-5 (2019)

Annotations

JUDICIAL DECISIONS When law and equity have concurrent jurisdiction, the court first taking will retain it, unless a good reason can be given for the interference of equity. Duke v. Duke, 181 Ga. 21, 181 S.E. 161 (1935); Robinson v. Georgia Sav. Bank &

Trust Co., 185 Ga. 688, 196 S.E. 395 (1938). A court of equity has concurrent jurisdiction with the judge of probate court over the settlement of accounts of administrators and executors; and

the court first taking jurisdiction will retain it. Terry v. Chandler, 172 Ga. 715, 158 S.E. 572 (1931). When a habeas corpus proceeding is filed in the court of ordinary (now probate court), involving custody of a minor child, and subsequently a petition is filed involving divorce, alimony, and the custody of such child, equity has power to enjoin the habeas corpus proceeding and determine all the issues in one action. Duke v. Duke, 181 Ga. 21, 181 S.E. 161 (1935). Since equity has concurrent jurisdiction with courts of ordinary (now probate courts) in the administration of estates, when its interference is necessary for the full protection of the rights of parties at interest and since it is a recognized rule that, when the heirs at law get together and agree to divide the estate and appoint an agent and put the agent in possession of the property for that purpose, a bill may be filed against the agent by any one or more of the distributees, the same as against an administrator, it cannot be said that, a petition seeking an order restraining the heir’s agent from the alleged fraudulent acts, and a receivership under direction of the court of equity was devoid of equity. Shingler v. Shingler, 184 Ga. 671, 192 S.E. 824 (1937). While the ordinary (now judge of probate court) and the judge of the superior court have equal and concurrent jurisdiction in determining the custody of the children of husband and wife living in a state of separation, only the superior court, so far as habeas corpus proceedings may be resorted to, has jurisdiction of such subject matter when related to a suit for divorce, and superior court judge who, after a habeas corpus proceeding before the ordinary (now judge of probate court) acquires jurisdiction of the subject matter in a divorce proceeding, may properly enjoin further progress of the former proceeding before the ordinary (now judge of probate court), in order that all questions raised by the divorce suit may be considered together. Ponder v. Ponder, 198 Ga. 781, 32 S.E.2d 801 (1945). While the ordinary (now judge of probate court) and the judge of the superior court have equal and concurrent jurisdiction in a habeas corpus proceeding be-

tween husband and wife involving the custody of their child, it is the general rule that, when two courts have such concurrent jurisdiction over the subject matter and the parties, the court first taking jurisdiction will retain it unless some good reason be shown for equitable interference. Breeden v. Breeden, 202 Ga. 740, 44 S.E.2d 667 (1947). When the superior court acquired jurisdiction of the question of the custody of a child in a divorce case, it retained that jurisdiction for the purpose of rendering a final judgment as to the custody of the child, and when the attempted dismissal by the wife of the proceeding was ineffectual, the ordinary (now judge of probate court) of the county, to whom the wife presented a petition for the writ of habeas corpus, was without jurisdiction to act upon the petition. Breeden v. Breeden, 202 Ga. 740, 44 S.E.2d 667 (1947). When the court has acquired equitable jurisdiction of the parties and the cause by virtue of equitable averments and prayers, it retains jurisdiction for all related purposes as made by the pleadings. Kniepkamp v. Richards, 192 Ga. 509, 16 S.E.2d 24 (1941). When it appears from a petition praying for an accounting that there was pending in another court a suit by the corporate defendant against the plaintiff, such court being empowered to render an accounting between the parties, and no special reason being set out why a court of equity should assume jurisdiction for such purpose, equity will not enjoin the proceedings and processes of a court of law in the absence of some intervening equity or other proper defense of which the party, without fault on the party’s part, cannot avail oneself at law. Peeples v. Peeples, 193 Ga. 358, 18 S.E.2d 629 (1942). Equity will not interfere with the regular administration of estates at the instance of an heir except when there is danger of loss or other injury to one’s interest. Gill v. Gill, 211 Ga. 567, 87 S.E.2d 389 (1955). Concurrent jurisdiction no longer existed. - Trial court had jurisdiction to enter an adoption decree that terminated the parental rights of the biological father because the juvenile court proceeding as

to the biological father’s parental rights had long since ended and, therefore, there was no problem of overlapping jurisdiction or competing, inconsistent rulings. Parker v. Stone, 333 Ga. App. 638, 773 S.E.2d 793 (2015). Concurrent jurisdiction over counterclaim for accounting of estate. - Because the plaintiffs asserted claims for conversion of property and sought a court order requiring the defendants to turn over certain items of personal property, such claims were properly heard by the superior court, as the court of equity and, accordingly, the superior court properly exercised concurrent jurisdiction over the counterclaim for accounting of an estate. Braswell v. Benton, 351 Ga. App. 372, 830 S.E.2d 758 (2019). Cited in Davis v. Culpepper, 167 Ga. 637, 146 S.E. 319 (1929); Calbeck v.

Herrington, 169 Ga. 869, 152 S.E. 53 (1930); Darby v. Green, 174 Ga. 146, 162 S.E. 493 (1932); Chase v. Bartlett, 176 Ga. 40, 166 S.E. 832 (1932); McCord v. Walton, 192 Ga. 279, 14 S.E.2d 723 (1941); Beavers v. Williams, 199 Ga. 114, 33 S.E.2d 343 (1945); Taylor v. Abbott, 201 Ga. 254, 39 S.E.2d 471 (1946); Walker Elec. Co. v. Walton, 203 Ga. 246, 46 S.E.2d 184 (1948); Hoffman v. Chester, 204 Ga. 296, 49 S.E.2d 760 (1948); Hamrick v. Hamrick, 206 Ga. 564, 58 S.E.2d 145 (1950); Clark v. White, 185 F.2d 528 (5th Cir. 1950); Rountree v. Davis, 90 Ga. App. 223, 82 S.E.2d 716 (1954); Seckinger v. Citizens & S. Nat’l Bank, 213 Ga. 586, 100 S.E.2d 587 (1957); Simpson v. American Nat’l Bank, 139 Ga. App. 112, 227 S.E.2d 903 (1976); Benefield v. Martin, 276 Ga. App. 130, 622 S.E.2d 469 (2005); Long v. Long, 303 Ga. App. 215, 692 S.E.2d 811 (2010).

RESEARCH REFERENCES Am. Jur. 2d. - 27 Am. Jur. 2d, Equity, §§ 10, 88, 158.

C.J.S. - 30 C.J.S., Equity, § 21.