Hilton v. Rogers

Supreme Court of Georgia1922-02-16No. No. 2504

152 Ga. 658

Summary · law.co

Holding. The trial court erred in dismissing the petition on general demurrer. The judgment was reversed.

Hilton brought an equitable action against Rogers after Rogers sued Hilton in municipal court for unpaid wages. Hilton alleged that Rogers had stolen personal property from her valued at $53 and sought to set off this tort claim against the wage demand. Because a tort-based setoff cannot be raised in an ordinary law court, Hilton asked the superior court to enjoin the municipal court proceeding and allow her to assert the setoff in the equitable action. The trial court dismissed the petition on general demurrer.

The court held that a defendant can pursue an equitable setoff of tort damages against a contract claim when the plaintiff is insolvent or a nonresident, and may petition a superior court to enjoin the lower court proceeding and consolidate the entire dispute. The court further explained that when personal property is wrongfully taken, the owner has a tort claim; however, if the property was not sold or converted to money, the owner is limited to pursuing a tort action and cannot waive the tort to sue on the contract instead. Because Hilton's petition did not allege that the stolen items were converted into money, refusing equitable relief would have been improper.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether tort-based setoffs can be asserted in equity against contract claims
Whether a superior court may enjoin a municipal court proceeding to allow equitable setoff and consolidate the dispute
Whether conversion of stolen property to money affects the owner's available remedies

Procedural posture

The trial court dismissed Hilton's equitable petition on general demurrer, and Hilton appealed.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Atkinson, J.

Mrs. Edward Hilton instituted an equitable action against Sarah Rogers. The petition as amended alleged that Sarah Rogers had sued plaintiff, in the municipal court of the city of Macon, for certain wages due her as cook, and that Sarah Rogers, who was insolvent, had stolen from her specified articles of the value of $53; that plaintiff had demanded the return of the goods; which was refused; that plaintiff desired to plead her demand as a set off in the action for wages, but, being based on tort, such plea could not be urged in a court of iaw. The prayers as amended were: (a) That the suit pending in the municipal court be enjoined, and that the plaintiff therein be ordered to set up her demands in the equitable suit. (6) That plaintiff be allowed to recover “her property stolen by the defendant, and that her set-off be allowed.” The judge overruled certain grounds of special demurrer, and dismissed the petition on general demurrer alone. The plaintiff excepted. Held,-.

1. “Damages arising ex delicto can not be set off against a cause of action arising ex contractu, but a defendant sued at. law upon a cause of action arising ex contractu may, in equity, set off damages arising ex delicto, when the plaintiff is insolvent or a non-resident. And if the plaintiff’s suit is pending in a city court, the defendant, in order to avail himself of such right of equitable set-off, may apply to the superior court as a court of equity, to enjoin the common law proceeding in the city court and take jurisdiction of the entire controversy between the parties and make a decree doing complete justice between them.” Arnold v. Carter, 125 Ga. 319-325 (54 S. E. 177); Hecht v. Snook &c Co., 114 Ga. 921 (41 S. E. 74); Ray v. Anderson, 119 Ga. 926 (47 S. E. 205).

2. Where one wrongfully takes the personal property of another and converts it into money, the latter has a right of action ex delicto for the wrong done him; though he is not restricted to that form of action, but may as a general rule waive the tort and sue in assumpsit as for money had and received to his use. If the .wrong-doer after taking the property converts the same to his own use in some other mannei than by a sale, and does not receive any money therefor, the owner has a right of action ex delicto against such wrong-doer, and is restricted to this form of action. Civil Code, § 4407; Craig v. Arendale, 113 Ga. 181 (3, 4) (38 S. E. 399).

3. Whether or not it would be proper to refuse to entertain a suit for injunctioft and other relief where the plaintiff seeks to set off his demand founded ■ on tort against a demand arising in contract, because the plaintiff might have an election to. waive the tort and sue on the contract, it -would not be proper to refuse the injunction and other equitable relief in this case -where it is not alleged that the articles stolen were sold or otherwise converted into money.

4. Applying the principles above stated, the trial court erred in dismissing the petition on general demurrer.

Judgment reversed.

All the Justices concur.

Equitable petition. Before Judge Malcolm D. Jones. Bibb superior court. February 9, 1921.

E. W. Maynard, for plaintiff. C. H. Hall, for defendant.