Coolidge v. Sandwich , 49 Ga. App. 563 ( 1934 )

Stephens, J.

1. A suit arising out of a proceeding in equity, brought by the purchaser of personal property against the seller, to rescind the contract of sale upon the ground of fraud in the execution of the contract, to cancel the notes which the purchaser had given for the balance due on the purchase-price, to enjoin the transfer of the notes, to recover the amount which the purchaser has paid on the purchase-price, and to obtain other relief, etc., is a suit in which the cause of action arises out of the alleged fraud of the defendant. It is a different 'Cause of action from that arising out of the breach of a contract to pay money, where the creditor brings a suit at common law against the purchaser to recover on the notes. 1 C. J. 51; Early v. Ingham, 166 Mich. 517 (131 N. W. 1104); Robertson v. Baxter, 57 Mich. 127 (23 N. W. 711). See Brooke v. Lowry National Bank, 141 Ga. 493 (3) (81 S. E. 223); Wood v. Carter, 29 Ga. 580; Hamlin v. Johns, 41 Ga. App. 91 (3) (151 S. E. 815).

Decided September 21, 1934. Olin T. Lester, Olin T. Lester Jr., J. Wighiman Bowden, for plaintiff in error. McElreath & Scott, J. Lon Duckworth, contra.

2. In this case, which is a common-law suit by the creditor against the debtor, to recover upon the notes, a plea in abatement which sets up, as a pending suit, arising out of the same cause of action, the suit arising out of the proceedings in equity and which was pending in the superior court, did not set out a pending suit for the same cause of action, and was properly stricken. Civil Code (1910), § 5678.

Judgment affirmed.

Jenkins, P. J., and Sutton, J., concur.