Smith v. Manning , 155 Ga. 209 ( 1923 )

Atkinson, J.

1. The petition not only seeks a common-law judgment but in aid of such judgment seeks, under application of equitable principles, to trace the money into property in which it was invested, and to have such property administered by the court of equity for the benefit of plaintiff and other intervenors who may show an interest in it. As the petition alleged a cause of action at law, whether or not it alleged a cause of action for the equitable relief prayed, it was not demurrable on the general grounds that it sets forth no cause of action, and that there is no equity in the petition. Logue v. Gardner, 152 Ga. 356 (110 S. E. 25).

2. The original petition seeks for recovery of a judgment at law for the amount of money alleged to have been obtained from plaintiff by all of the defendants. as conspirators, by fraudulent practices and schemes such as are sometimes called confidence games. The petition alleged in effect that all of the several defendants had conspired to rob and swindle other persons generally and pool their illegally obtained gains, and in pursuance of such conspiracy had swindled and obtained from' plaintiff a stated amount. The petition set forth a cause of action at law against all of the specially named conspirators, including the demurring defendant, Elizabeth Smith.

3. The original petition shows upon its face that the bond for title to the real estate into which it is attempted to trace some of the money obtained from the plaintiff was acquired on April 14, 1919, which was before the plaintiff, Manning, suffered a loss of his money in January, 1920. The only property alleged to have been purchased into which the plaintiff claims the right •to trace his money was the real estate mentioned in the bond for title, and certain automobiles. The allegations as to the source from which the money was obtained to buy these properties 'are set forth in paragraphs 30, 31, 32, and 33 of the petition, which are quoted in the statement of facts. These allegations, construed on demurrer most strongly against the plaintiff, are insufficient to charge that the plaintiff’s money was invested in either of such properties. Eelatively to the real estate it was alleged: “ On April 14, 1919, a bond for title was made to the said Mrs. Elizabeth Smith, . . upon which there has been paid a very large part, the exact amount being to petitioner as yet unknown.” This was not an allegation that plaintiff’s money, which was not lost until January, 1920, was invested in that property. Eelatively to the Stutz automobile the allegation is that it “was bought from the proceeds- of swindling operations conducted in a manner similar to that already herein described,” etc. “ Swindling operations ” “ similar to that already herein described ” excludes the operation in which plaintiff lost his money. And to the same effect was the allegation relating to the other automobile, namely, “was brought from similar sources of revenue/’ that is, revenue other than plaintiff’s money. As plaintiff’s money was not alleged to have been invested in these properties, there is no ground upon which to ask the aid of equity in tracing such fund. The plaintiff finally amended his petition by adopting the allegations of all of the interventions, in some of which it was alleged that the damage was sustained prior to the date of the bond for title, and that the money of such intervenors was invested in the real estate and the automobiles, but not one of these alleged that plaintiff’s (Manning’s) money was so invested. Consequently the adoption of the allegations of such intervenors did not cure the fatal defect in the original petition in failing to allege that the plaintiff’s money was invested in such property. Nor would .Manning, without an interest in or lien on the realty, have any equitable right to impound such realty on the theory that it was a mere gift to Mrs. Smith by her insolvent husband for the purpose of .defrauding his creditors. Atlanta &c. Ry. Co. v. Carolina Cement Co., 140 Ga. 650 (79 S. E. 555).

4. Intervenors take the case as they find it. Atlanta &c. Ry. Co. v. Carolina Cement Co., supra. Allegations that would show an equitable right in the intervenors to trace their money into the property would not give them an independent right to proceed in equity in this case for such purpose, whatever might be their right to institute independent suits or a joint independent suit for such purpose. In this case they must take the fortunes of the plaintiff in the original petition; and as he did not allege a cause of action for equitable relief, the intervenors have no right to such relief.

5. In the circumstances the case as finally presented by the original petition and the several interventions is one where several persons allege separate and distinct causes of action at law against the defendants jointly, and with no grounds upon which to base a joint equitable action. It is manifest that the several plaintiffs can not join in one action; and it follows that the demurrer of the defendant Elizabeth Smith to the petition and interventions, raising the question as to the misjoinder of parties plaintiff, should have been sustained, and that the court erred in overruling such ground of demurrer. Conley v. Buck, 100 Ga. 187 (28 S. E. 97); Ramey v. O’Byrne, 121 Ga. 516 (49 S. E. 595); White v. North Georgia Electric Co., 128 Ga. 539 (58 S. E. 33); Martin v. Brown, 129 Ga. 562 (59 S. E. 302); Ansley v. Davis, 140 Ga. 615 (79 S. E. 454); Wilson v. Ward, 149 Ga. 325 (100 S. E. 205).

Judgment reversed.

All the Justices concur.