Opinion
26661.
ARGUED SEPTEMBER 13, 1971.
DECIDED SEPTEMBER 27, 1971.
Complaint. Lowndes Superior Court. Before Judge Franklin.
Burch Boswell, John S. Boswell, Sr., for appellant.
Joe Vallotton, O. Wayne Ellerbee, for appellees.
This case is one where the plaintiff's complaint sought to recover for the unauthorized removal by the defendants of certain property owned by the plaintiff. The defendants denied the essential allegations of the complaint, and the jury found in favor of their counterclaim. The appeal is from the denial of plaintiff's motions for new trial and judgment notwithstanding the verdict.
The appellees have raised the question of this court's jurisdiction of the appeal.
We deem their position to be well taken.
In our view, no equitable feature is involved. The rule is that "Whether an action is one at law or in equity is determined by the allegations of the petition and the nature of the relief prayed, and not by the designation given to the action by the pleader. If the averments of the petition do not make a case in equity, a prayer for equitable relief would not make the same one in equity." Avant v. Hartridge, 174 Ga. 278, 280 ( 162 S.E. 524). See also Dorough v. Pettus, 215 Ga. 649, 650 ( 112 S.E.2d 592), Johnson v. Mutual Federal Savings c. Assn., 225 Ga. 245 ( 167 S.E.2d 653).
Here, even if the prayers of the complaint be construed as seeking equitable relief, the allegations of the complaint seek only to make out a case for recovery of a money judgment.
In this connection it has been held that "A petition which contains allegations appropriate only to a suit for damages for conversion of personal property does not assume the character of an equity suit merely by virtue of a prayer for equitable relief." Atlanta Finance Co. v. Fitzgerald, 189 Ga. 121 ( 5 S.E.2d 242).
Since there is no basis for this court's jurisdiction under the Constitution ( Code Ann. § 2-3704), this case is
Transferred to the Court of Appeals. All the Justices concur.