154 Ga. 401 | Ga. | 1922
(After stating the foregoing facts.) The contest in this case is over the ownership of, and the right to control, the execution involved in this litigation. The plaintiffs claim title to this fi. fa. under mesne transfers from the original plaintiff in fi. fa. unto themselves. The defendant' Colter claims title to this execution under like transfers. Both claim under Jane Warren, who was the holder and owner thereof under a previous transferee and owner of the fi. fa. Colter claims title to the execution under a transfer which was signed, “ Mrs. M. J. Warren, by J. C. Warren ” (Mrs. M. J. Warren being the same person as Jane Warren), which transfer antedates the transfer under which the plaintiffs claim. The transfer to the defendant is attacked by the plaintiffs on the ground that it was made by J. C. Warren without authority from Jane Warren and without her knowledge and consent. The trial judge was authorized to find that this was true, and that the plaintiffs were the owners of this fi. fa., and entitled to control the same. The plaintiffs did not wish the property sold which was levied upon under this fi. fa. and advertised for sale by the sheriff, because they had a junior mortgage on this property, which, due to the existing financial depression, would be sacrificed by the sale at the time, and because the defendant was their tenant, who could not make his' crops during 1922 if he was deprived of his property by its sale under this execution.
While the defendant in execution could not enjoin the sale of his property, when levied upon to satisfy a judgment against him, on the ground that it would be sacrificed if sold under existing financial depression (Robinson v. Thompson, 30 Ga. 933), the plaintiffs, as owners thereof, could delay action if they were of the opinion that the property wordd bring more if the enforcement of the fi. fa. was delayed.
The defendants next insist that the plaintiffs would have an adequate remedy at law against Jane Warren, who transferred this execution to them, for breach of her implied warranty of title, if it should turn out, in a rule to distribute funds arising from the sale of the property levied upon, that she had no title to the fi. fa. Civil Code (1910), § 5348. But if she had’ title to
It may be said that the plaintiffs would have an action for damages against the defendants for any wrongful interference with the plaintiffs’ right to this execution; and that for this reason they were not entitled to injunction. The fi. fa. being regular upon its face, and it being the duty of the sheriff to make the money thereon, the sheriff would not be a trespasser. Hall v. Lyon, 37 Ga. 636; Harris v. Black, 143 Ga. 497, 500 (85 S. E. 742). Have the plaintiffs an adequate remedy by an action for damages against the defendant Colter, for wrongful interference with the rights of the plaintiffs, if the latter are found to be the true owners of this fi. fa.? If the injury is irreparable in damages, or there exist other circumstances which, in the discretion of the court, render the interposition of this writ necessary, an injunction will be granted. Civil Code (1910), § 5493. .An irreparable injury arises where the person injured “cánnot be readily, adequately, and completely compensated” with money, or when the damages which may result from a tort cannot be measured by any certain pecuniary standard. Camp v. Dixon, 112 Ga. 872 (38 S. E. 71, 52 L. R. A. 755). Under the peculiar facts we think they make a case of irreparable injury, because the damages cannot be fixed by any certain money standard. The writ of injunction is required to fully protect the plaintiffs; and for this reason it cannot be urged that there is an adequate remedy at law. Knight v. Knight, 28 Ga. 165.
So we are of the opinion that the wise judge below did not abuse his discretion in granting a temporary injunction in this ease. Judgment affirmed.