35 S.E.2d 502 | Ga. | 1945
The court having committed error in overruling the general demurrer, all subsequent proceedings were nugatory.
To this petition, the defendant demurred generally on the grounds that it failed to set forth any cause of action against the defendant, and failed to allege any facts sufficient to entitle the petitioner to any relief in equity. The trial judge, after hearing argument on the demurrers, overruled the demurrer, and, after the introduction of evidence, granted an interlocutory injunction. *803
The defendant excepted to the overruling of its demurrer and to the grant of the injunction.
A demurrer to a petition for injunction may be heard and determined by the judge at an interlocutory hearing and before the appearance term. Code, § 81-1002; Wilder v. Thompson,
It is insisted by counsel for the plaintiff in error that in the present proceeding the purpose of the defendant in error was to seek the shelter of equity in order to avoid the necessity of defending an eviction warrant and escape filing the statutory bond. It is well settled in this State that, where a landlord proceeds against a tenant under the Code, §§ 61-301, 61-302, the tenant may arrest the dispossessory warrant by filing a counter-affidavit and tendering a bond under section 61-303, and, in the absence of an intervening equity, the tenant's defenses against the dispossessory warrant can not be urged in a proceeding in equity to enjoin the dispossessory warrant. Hall
v. Holmes,
The defendant in error alleges, "on information and belief: That it is the purpose of said defendant to seek to take possession of her room, to wit, room 317, without due process of law, and unless said defendant is restrained from evicting her, or taking possession of said room, she will suffer great injury and irreparable damages which can not be computed in money. Your petitioner because of the scarcity of rooms, caused by the war, will be unable *804
to obtain suitable quarters elsewhere, if evicted." The injury alleged is a mere apprehension of the pleader. No threats to evict her without due process of law are alleged, nor are any facts set forth to show that it is the intention of the plaintiff in error to evict her without due process of law. "A mere apprehension of injury will not be sufficient to authorize the issuance of an injunction, `where no facts are alleged to show that the apprehended injury would be irreparable in damages.'"Slaughter v. Land,
The rule has been stated by this court many times as to what constitutes sufficient averments where irreparable damages are relied upon for the grant of an injunction. In Justices of PikeCounty v. Griffin West Point P. R. Co.,
In Reeve v. Hicks,
A petition for injunction based on apprehension of injury, where no proper facts are alleged to show irreparable damages, should be dismissed on general demurrer.
Judgment reversed. All the Justices concur.