21 S.E.2d 848 | Ga. | 1942
Dissolution, on conflicting evidence, of restraining order, and denial of interlocutory injunction against use of calcium arsenate on cotton growing on land adjoining the plaintiff's orchard, and so destroying or injuring his peach trees, reversed as an erroneous construction, in the judge's order, of the law respecting his discretionary power.
2. Where, however, an injunction is granted or refused on an erroneous interpretation of the law, the rule giving effect to the chancellor's discretion on issues of fact, so that an affirmance would be required where the evidence as to the facts is conflicting, will not be given application. Chestatee PyritesCo. v. Cavenders Creek Gold Mining Co.,
3. If the evidence for the complainant and that for the defendant "be in practical equipoise, the injunction should be granted or refused according to the peculiar circumstances of the particular case. There should be a balance of conveniences, and a consideration whether greater harm might result from refusing than from granting the relief prayed for." Everett v. Tabor,
4. Applying the foregoing rules to the facts of the instant case, *430 while it appears that the judge exercised his discretion in determining the weight of the evidence by adjudicating, that, "the evidence in this case being very conflicting, the court is of the opinion that the evidence is equally strong on each side," he further held "that the burden rests upon the plaintiff to prove his case by a preponderance of evidence; and that not being done, the court hereby dissolves" the restraining order and denies the injunction on certain conditions stated in the order. It thus appears that the judge has in effect erroneously held that in a case where the evidence was equally balanced he was without power, as a matter of law, to exercise his discretion in the grant or refusal of the injunction. This being true, his judgment refusing an injunction, not as a matter of discretion but as a matter of law, must be reversed, and the case remanded in order that he may, under such a state of facts, exercise his discretion in determining whether the injunction shall or shall not be granted.
5. "This court sits to review rulings of the trial courts, and it will not pass upon questions on which no ruling has ever been made by the trial judge." Bourquin v. Bourquin,
Judgment reversed. All the Justices concur.