Burress v. Montgomery , 148 Ga. 548 ( 1918 )

Gilbert, J.

Burress et al. sued Montgomery et al. on a contract to pay royalties on certain patented roofing. An itemized account and the contract in hsec verba were attached to the petition. Under .the contract the. plaintiffs are allowed the right to examine defendant’s books. The petition contains a number of questions propounded to the defendants for the purpose of disclosing the amount of roofing manufactured and sold. The prayers are for process, for an accounting, for “discovery” in response to the questions, and for such other and further relief ‘.‘as to law and equity may seem proper.” Held:

1. Discovery may be had from the opposite party in any case, legal as well as equitable, pending in any court. Civil Code (1910), § 4550; Mackall v. West, 67 Ga. 278; Cecil Nat. Bank v. Thurber, 59 Fed. 913, 914 (8 C. C. A. 365).

2. “Equity will not take cognizance of a plain legal right, where an adequate. and complete remedy is provided by law.” Civil Code (1910), § 4538.

3. An accounting may be had at law. Civil Code (1910), § 5128. The mere necessity of accounting to ascertain the amount due on a contract is wholly insufficient to give equity jurisdiction to order an accounting. 1 C. J. 615, note 73 (a); Clements v. Cooper Co., 136 N. Y. Supp. 93.

4. The accounting sought is neither mutual nor complicated, and' no fiduciary relation between the parties is alleged. Civil Code (1910), § 4586; 1 C. J. 618 et seq.

5. Notwithstanding the prayer for “discovery,” “accounting,” and relief in equity, the petition alleges no cause showing inadequacy at law. In fact the remedies provided at law are adequate, and it follows that equity has no jurisdiction. Properly construed the petition makes a plain action at law based on contract. Bowen v. Johnson, 12 Ga. 9 (2); Osborn v. Ordinary, 17 Ga. 123 (63 Am. D. 230); Printup v. Mitchell, 17 Ga. 558 (13), 565 (63 Am. D. 258).

6. It follows from the above observations that this court is without jurisdiction to d'eeide the case, and that the Court of Appeals has jurisdiction. It is ordered that the case he and it is transferred to the Court of Appeals.

All the Justices concur.