Hollinshed v. Shadrick

212 Ga. 624 (1956)

94 S.E.2d 705

HOLLINSHED v. SHADRICK et al.

19432.

Supreme Court of Georgia.

Submitted September 10, 1956.

Decided October 10, 1956.

Dewey Smith, for plaintiff in error.

ALMAND, Justice.

Lon Shadrick and another filed their petition against Jesse D. Hollinshed, to recover damages by reason of alleged unlawful and unreasonable search of the plaintiffs' premises by the defendant, a police officer, in the execution of a search warrant. The general and special demurrers of the defendant being overruled, he filed a bill of exceptions assigning error on this order, and the writ of error was directed to the Court of Appeals, which court transferred the case to this court. An examination of the record discloses that the plaintiffs' petition contained allegations appropriate only to their action for damages, the only reference to equitable relief being the prayer that the defendant "be enjoined and restrained from coming about plaintiffs' place of business or from calling, communicating, threatening, or intimidating your petitioners, directly or indirectly until such time as he has received sufficient training and enlightment to assure his conduct being that of a gentleman and worthy of the respect due Cobb County policemen."

"To make a case in equity, the allegations of the petition must be applicable to the equitable relief prayed, and there must be a prayer either for the specific relief prayed, or for general relief." Odom v. Atlanta & West Point R. Co., 204 Ga. 328 (1) (49 S. E. 2d 821). The petition in the instant case containing allegations only appropriate to the prayer for damage, does not assume the character of an equitable action by virtue of the prayer for injunctive relief. Atlanta Finance Co. v. Fitzgerald, 189 Ga. 121 (5 S. E. 2d 242); White v. Georgia Railroad &c. Co., 197 Ga. 238 (28 S. E. 2d 858); Carter v. State of Ga., 211 Ga. 824 (89 S. E. 2d 175). This court being without jurisdiction of the writ of error (Code, Ann., §§ 2-3704, 2-3708), it is

Returned to the Court of Appeals. All the Justices concur, except Wyatt, P. J., not participating.