Dent v. Summerlin

12 Ga. 5 | Ga. | 1852

By the Court.

Warner, J.

delivering the opinion.

[1.] The error assigned to the judgment of the Court below in this case is, the refusal to dissolve the injunction on the coming in of the deiendant’s answer, denying as the plaintiff in error insists, all the facts and circumstances upon which the equity in the complainant’s bill is based. The general rule is, that when the defendant by his answer denies all the facts and circumstances upon which the complainant’s equity is predicated, the injunction will be dissolved ; but that general rule is not without its exceptions, especially when fraud is charged, as in this case. The question is not now, whether this Court would have dissolved this injunction at the hearing of the motion, but the question now is, whether this Court shall control the discretion of the Court below, in refusing to dissolve it.

[2.] The granting and continuing the process of injunction must always rest in the sound discretion of the Court, to be governed by the ¡nature and circumstances of the case. Roberts vs. Anderson, 2 John. Ch .Rep. 202. Holt et al. vs. The Bank of Augusta, 9 Ga. Rep. 552. James vs. Lemby, 2 JV. Carolina Eq. Rep. 278. This Court would more readily interfere with the discretion of the Court below, in granting an order to dissolve an injunction, than when it re/wses to do so. In the one case, the rights of the complainant are cut off, without having an opportunity to controvert the defendant’s answer by evidence before the Jury. In the other, the cause is only held up, to be submitted to a Special Jury, and tried on its merits.

The gravamen of the complainant’s bill is fraud, in the sale of certain tracts of land under execution, by the defendant, whereby, he alleges he. has been greatly injured. The question of fraud, or no fraud, in the sale of these lands, is a question of fact which may very properly be submitted to the consideration of the Jury; and if the complainant shall be enabled to controvert the defendant’s answer, by the requisite evidence, he will be entitled to a decree. If he shall not be enabled to do so, then the defendant will be entitled to a decree in his favor. In a case of this character, we shall not control the discretion of the Court, in refusing to dissolve the injunction. Let the judgment of the Court below be affirmed.