226 Ga. 631 | Ga. | 1970
This is the second appearance of this litigation in this court. See Dept. of Agriculture v. Country Lad Foods, 224 Ga. 683 (164 SE2d 110). After the decision of this court affirming the judgment of the trial court on October 31, 1968, the Department of Agriculture undertook to revise its regulations with respect to filled milk. On September 5, 1969, plaintiff filed in the Superior Court of Fulton County a pleading denominated an “amendment to plaintiff’s complaint” in which it sought to add a “Count II” to its original complaint alleging therein that the defendant had adopted voluminous regulations purporting to control plaintiff’s right to manufacture and market its product, and under which the defendant had advised the plaintiff that it must make certain changes in the labeling of the containers in which its product is to be marketed; that the plaintiff must obtain a license, and imposing upon the plaintiff various other- restrictions in the conduct of its business,
When the case came on for trial before the judge of the superior court on September 26, 1969, the defendant made an oral motion to dismiss the plaintiff’s pleading captioned, “Amendment to plaintiff’s complaint,” filed and allowed on September 5, 1969, on the ground that the same constituted a supplemental pleading within the meaning of § 15 (d) of the Georgia Civil Practice Act ('Code Ann. § 81A-115 (d)) in that
The revised regulations of the Department of Agriculture respecting the labeling of milk and milk products were issued on August 20, 1969, nearly ten months after the judgment of this court had been made the judgment of the trial court on the remittitur. The issuance of such revised regulations was but a continuation of the proceeding which gave rise to this litigation in the first instance. While, under the Civil Practice Act, it would have been permissible, and perhaps better, for the plaintiff to have raised the issues sought to be raised by the “Amendment” by filing a new action, yet, this was not necessarily the exclusive avenue of relief open to the plaintiff. The defendant was duly served with a copy of the amendment and the rule nisi issued thereon, appeared, and made no objection to the service or to the manner in which it was accomplished, submitted itself to the jurisdiction of the court and has filed defensive pleadings raising issues as to the
“The granting and continuing of injunction shall' always rest in the sound discretion of the judge, according to. the circumstances of each case.” 'Code § 55-108. It has been many times held under the authority of this Code section that where the evidence on a hearing for a temporary or interlocutory injunction is conflicting, the exercise by the judge of his discretion in granting or refusing an injunction will not be controlled unless manifestly abused. Cairo Pickle Co. v. Muggridge, 206 Ga. 80, 82 (55 SE2d 562); Augusta School of Aviation v. City Council of Augusta, 211 Ga. 20 (83 SE2d 675); Brooks v. Carter, 216 Ga. 836 (1) (120 SE2d 332). The order appealed from does not in terms enjoin the Department of Agriculture from any act. It does recite that the case came “on regularly to be heard on temporary injunction” and orders, adjudges and decrees that the plaintiff be allowed to use a specified carton in the marketing of its product. The parties have treated the order as one granting a temporary injunction. This court will accordingly deal with the order on that basis. Being such, it was not erroneous for any reason urged. The evidence transmitted to this court was in the form of a stipulation between the parties. A witness for the plaintiff testified that in his opinion the definition by the rules of the Department of Agriculture of the plaintiff’s product as “imitation, reconstituted milk” would be misleading as to the true nature of the plaintiff’s product and would as a practical matter virtually destroy the plaintiff’s business. If such is the effect of the rules of the
Judgment affirmed.