30 S.E.2d 91 | Ga. | 1944
1. The petition, so far as the cutting of timber is concerned, does not pray that the cutting of timber be joined, but on the contrary, while seeking an accounting for the timber cut, does not object but consents to its future cutting, provided the proceeds be accounted for. Accordingly, no ruling is invoked or required as to whether the allegations of the petition would otherwise meet the requirements with respect to a prayer for injunction against a trespass by the cutting of timber.
2. In so far as the petition seeks an injunction against the defendants, restraining them from "dispossessing" the plaintiffs of the premises, the only allegation contained in the petition with respect to a threatened dispossession is that the named vendee of the husband of one of the plaintiffs "threatened to dispossess" this plaintiff wife, followed by a prayer "that a temporary restraining order be granted, restraining and enjoining the defendants from dispossessing [such] plaintiff them said premises until the further order of the court." The only evidence as a any threatened dispossession consists of this sworn allegation of the petition. Since the vague and uncertain language in the sworn allegation is reasonably susceptible to the interpretation that the defendant was threatening to resort to ejectment to obtain possession, and since such procedure would not be subject to repression by the equitable *570
process of injunction, and since even if it be construed as meaning that the defendants were threatening to dispossess the plaintiffs by recourse to a dispossessory warrant, there is no allegation such as would justify the interposition of equitable relief to restrain such a process, as the plaintiffs do not allege either insolvency or irreparable injury, and do not even allege that they would be unable, on account of poverty, to give the bond required by law in such a proceeding. It is the general rule that even had the allegation as to poverty been made, this mere fact would not of itself afford ground to go into a court of equity for the purpose of restraining a summary remedy (Napier v. Varner,
Judgment affirmed. All the Justicesconcur.