128 Ga. 346 | Ga. | 1907
applied to the ordinary for a commission of lunacy to inquire into the sanity of H. Judgment was rendered declaring H. a. lunatic and appointing a guardian to take charge of her property. The husband of H. entered an appeal to the superior court. When the case eanie on for hearing in that court the applicant voluntarily dismissed the. application. Subsequently" he filed" a second application in the court of ordinary, against the same party for the same purpose. To this, application a plea in abatement was filed, setting up that the costs, of the former proceeding had not been paid before the filing of tho second application. The ordinary overruled this plea in abatement. H. applied for a writ of certiorari and the application was granted. She also applied to the judge of the superior court for an injunction to restrain the applicant from proceeding in the court of ordinary with the application for the commission of lunacy until the certiorari was disposed of. At the hearing no answer was filed by the defendant,, and the court passed upon the case upon the sworn' petition alone,, and refused the injunction. Held-. (1) There was no equity in the petition, and the injunction was properly refused. (2) The merits of" the plea in abatement were not involved in the application for injunction, but merely the question as to whether a court of equity would restrain the ordinary from proceeding to final judgment in the case, to await the decision on the application for certiorari assigning error upon a pendente lite ruling.
Judgment affirmed.
