188 Ga. 418 | Ga. | 1939
On an application fox injunction the judge, on a proper showing, may grant without notice to the defendant a "“temporary restraining order,” until the hearing or further order of the court, which shall have all the force and effect of an injunction until rescinded or modified by the court. Upon such a temporary restraining order being granted, it is the duty of the judge to cause sufficient notice to be given to the defendant as to the time and place for an interlocutory hearing to be had thereon. Code, § 55-201; Webb v. Hicks, 117 Ga. 335, 340 (43 S. E. 738); Young v. Hamilton, 135 Ga. 339, 345 (69 S. E. 593, 31 L. R. A. (N. S.) 1057, Ann. Cas. 1912A, 144). It is only upon such an interlocutory hearing and after notice thereof to the opposite party that a temporary or interlocutory injunction may be granted. Code, §§ 55-202, 55-111; Strickland v. Griffin, 70 Ga. 541 (5), 550; Payton v. Ford, 134 Ga. 587 (2) (68 S. E. 300); Southern Cotton-Oil Co. v. Overby, 136 Ga. 69 (3) (70 S. E. 664); Strain v. Stark, 135 Ga. 687 (2) (70 S. E. 568); Brown v. Smith, 150 Ga. 111 (102 S. E. 813).
While a fast writ of error will lie from an order at the interlocutory hearing, granting or refusing an injunction (Code, § 6-903; Temple Baptist Church v. Georgia Terminal Co., 128 Ga. 669, 674, 58 S. E. 157; Davison-Nicholson Co. v. Pound, 147 Ga. 447, 94 S. E. 560), the mere grant or refusal of an ex parte restraining order in advance of the time set for the hearing of the application for temporary injunction is not reviewable. Hollinshead v.
No question is presented in the instant case as to whether an order passed at the interlocutory hearing, dissolving, revoking, rescinding, vacating, or setting aside a previously granted restraining order should be construed as a refusal of an injunction, so as to authorize a fast bill of exceptions. See Hollinshead v. Lincolnton, supra; Stubbs v. McConnell, 119 Ga. 21 (45 S. E. 710); Berry v. Parker, 130 Ga. 741 (61 S. E. 541); Young v. Harris, 146 Ga. 338 (91 S. E. 39); Ragan v. Ragan, 148 Ga. 151 (96 S. E. 96); Higgins v. Gaines, 150 Ga. 786 (105 S. E. 371); Putnam Mills & Power Co. v. Stonecypher, 151 Ga. 14 (106 S. E. 87); Bradfield v. Abercrombie, 151 Ga. 401 (107 S. E. 45); Touchton v. Henderson, 158 Ga. 819 (124 S. E. 529); James v. Wilkerson, 164 Ga. 149 (138 S. E. 71); Forrester v. Denny, 169 Ga. 435 (150 S. E. 555); Barrett v. American Securities Co., 173 Ga. 57 (159 S. E. 866); Wofford Oil Co. v. Nashville, 177 Ga. 460 (170 S. E. 369); Taylor v. Cleghorn, 178 Ga. 765 (174 S. E. 239); Jett v. Gordon, 179
Under the Code, § 81-110, “petitions for a restraining order, injunction, receiver, or other extraordinary relief shall be verified positively by the petitioner or supported by other satisfactory proof.” Byrd v. Prudential Insurance Co., 182 Ga. 800 (187 S. E. 1). While it is true that positively verified pleadings serve “the office of both pleading and evidence on the application for an injunction,” and an order granting an interlocutory injunction thereon will be affirmed where such a verified petition raises an issue as to all material facts (Saint Amcmd v. Lehman, 120 Ga. 253 (4), 47 S. E. 949; Bowers v. Dean, 187 Ga. 700, 2 S. E. 2d, 655); Roberts v. Roberts, 180 Ga. 671 (3), 180 S. E. 491), and that a petition is sufficient when it is verified by the affidavit of the petitioner that “the facts set forth in the bill, as far as they relate to his act and deed, are true, and so far as they relate to the act and deed of others he believes to be true” (Harper v. Whitehead, 33 Ga. 138 (5), 145), yet an affidavit, as in the instant case, is insufficient where it merely states that "“the allegations of fact set forth in the foregoing petition, where same is based upon affiant’s knowledge, are true, and where based upon information she believes to be true,” and the petition does not allege what facts are -“based upon [her] knowledge,” and thus fails to completely or sufficiently segregate by positive verification which of the essential facts of the petition were and which were not within her own knowledge. This is true, since in the Harper case, supra, as construed in Hone v. Moody, 59 Ga. 731, 733, the petition showed that “the party making the affidavit . . was an active participant in the main
Judgment reversed.