Kilgore v. Paschall

43 S.E.2d 520 | Ga. | 1947

"Petitions for a restraining order, injunction, receiver, or other extraordinary equitable relief shall be verified positively by the petitioner or supported by other satisfactory proofs." Code, § 81-110. An unverified petition seeking injunction and other equitable relief (which is not amended to supply verification or other satisfactory proofs) should be dismissed on a demurrer which specifically attacks the petition for noncompliance with § 81-110.

No. 15865. JULY 10, 1947. J. H. Paschall, as Solicitor-General of the Superior Court of Bartow County, filed an unverified equitable petition against Joel T. Kilgore, to enjoin an alleged public nuisance. In substance, the petition alleged: The defendant is engaged in the operation of a business three miles north of Cartersville, known as Park Grove Filling Station. Such business is a public nuisance, in that the defendant is engaged in the illegal sale of beer and wine, and encourages the drinking of intoxicating liquors on his premises. The defendant keeps and operates pin-ball gambling machines and permits drunken persons of questionable character to congregate in his place of business. There are frequent fights and brawls on the premises. The place of business should "be padlocked and defendant enjoined and restrained from the further operation of said place of business as a public nuisance." The petitioner has been requested by various citizens to "bring this petition in his official capacity." "There are numerous residences in close proximity to said place of business and, on account of the manner in which said place is conducted, the same disturbs citizens in their rest at night."

The prayers were for process, rule nisi, and that on the hearing the defendant be enjoined and restrained from the further operation of his place of business, "and that the sheriff of said county be ordered to padlock said place of business, as provided by law in such cases."

The defendant demurred generally and specially to the petition. In ground 13 he demurred "to said petition upon the ground that the same is not verified and was not sworn to as provided by law."

The defendant's demurrers to the petition as amended were overruled, and he filed exceptions pendente lite. The bill of exceptions assigns error on these exceptions, on a judgment enjoining and restraining the further operation of the business of the defendant, and on an order that his business be padlocked by the sheriff. Under the act of 1899 (Ga. L. 1899, p. 73; Code, § 58-110), declaring a "blind tiger" a nuisance, the solicitor-general of the circuit in which such "blind tiger" is located may bring an equitable petition to abate the nuisance by injunction. Legg v.Anderson, 116 Ga. 405 (42 S.E. 720). The act of 1915 (Ga. L. Ex. Sess., p. 83; Code, § 58-109), is broader in remedial provisions than the act of 1899 (Code, § 58-110). Pullen v.Meadors, 196 Ga. 801 (27 S.E.2d 655). In either instance the petition must proceed for the public on information filed by the solicitor-general of the circuit. Code, § 72-202. The "blind-tiger" statute (§ 58-110) provides that the nuisance may be abated or enjoined "as now provided by law." In Legg v. Anderson, supra, the words "as now provided by law" were construed to mean: "upon application to the judge of the superior court, upon a sworn petition and after a hearing." This construction of the words "as now provided by law" from theLegg case was quoted and approved by this court in Davis v.State, 199 Ga. 843 (35 S.E.2d 458).

The act of 1915 (Code, Ch. 58-1), with reference to the abatement of nuisances enumerated therein, provides: "All rules of evidence and the practice and procedure that pertain to proceedings in equity generally in this State may be invoked and applied to any injunction proceeding hereunder." Code, § 58-104 "The true rule for the construction of the word may in a statute is, that when such statute concerns the public interest, or affects the rights of third persons, then, the word may, shall be construed to mean must or shall." Birdsong v.Brooks, 7 Ga. 89; Weems v. Farrell, 33 Ga. 419;Jennings v. Suggs, 180 Ga. 141 (178 S.E. 282). "Petitions for restraining order, injunction, receiver, or other extraordinary equitable relief shall be verified positively by the petitioner or supported by other satisfactory proofs." Code, § 81-110.

In Jones v. Macon Brunswick R. Co., 39 Ga. 138, it was held: "An injunction which is a harsh remedy should not be granted until a clear prima facie case is made by the bill. The allegations must be direct and positive. A charge that they are true `on information received from others,' is insufficient." In discussing the act of 1887 (Ga. L. 1886-7, p. 65, Code, § 81-110), this court in Boykin v. Epstein, 87 Ga. 27 (13 S.E. 15), said in part: "Its evident purpose was that nothing putting in motion the extraordinary powers of the court should be done by the judge until the application for the exercise of such powers has been vouched for by some kind of proof or verification. A rule nisi on such a petition is as much a part of the `equitable relief or remedy' sought as a restraining order or one appointing a receiver." In Byrd v. Prudential Ins. Co.,182 Ga. 800 (187 S.E. 1), it was held that verification of a petition by a person, to the effect "that the allegations contained therein are true and correct, to the best of his information and belief" was not a "positive verification as contemplated by the above section of the Code [§ 81-110]." See also Grizzel v. Grizzel, 188 Ga. 422 (3 S.E.2d 649).

In the present case, the petition was not verified in any form by either the solicitor-general or any person on whose information the petition was filed. There is nothing in the record before this court to indicate that the petition was "supported by other satisfactory proofs" in lieu of the verification required. While the Code, § 81-110, states that it shall be verified by the petitioner, it has been held that, where an attorney swears positively to the effect that the recitals of fact in the petition are true, this is a sufficient verification. See Boston Mercantile Co. v. Ould-Carter Co., 123 Ga. 458 (51 S.E. 466). Thus a petition positively verified by the attorney would be "supported by other satisfactory proofs."

Nothing held by this court in Bracewell v. Cook, 192 Ga. 678 (16 S.E.2d 432), is in conflict with the rulings here stated. In the Bracewell case the petition for injunction was verified by Cook, who "on oath says that the facts set out in the foregoing petition, to the best of his knowledge and belief are true and correct;" and the court simply held that such defective verification did "not as a matter of law demand its dismissal," but that the petition might be retained in court and an injunction granted where "other satisfactory proofs" are submitted. To the same effect are Lee v. Clark, 49 Ga. 82 (2); Boykin v. Epstein, supra; and Martin v. Burgwyn,88 Ga. 78 (13 S.E. 958), cited in the Bracewell case. InBailey v. Bailey, 90 Ga. 435 (16 S.E. 90), and in Sasser v. Olliff, 91 Ga. 84 (16 S.E. 312), it was held not to be error to deny an injunction where the verification did not conform to the statute; and in New South Building Loan Assn. v. Willingham, 93 Ga. 218 (18 S.E. 435), this court reversed a judgment granting an injunction where the verification of the petition was not positive as required by the statute, and "other satisfactory proofs" were not offered.

Other authorities might be cited to the effect that where the verification of a petition for injunction is not in positive terms, but only to the best of the applicant's knowledge, information, or belief, the trial judge may exercise a discretion and permit the petition to be supported by "other satisfactory proofs." Such cases, however, are not in point where there is no attempt by the petitioners to verify the petition, and the record is silent as to any "other satisfactory proofs," as is true in this case. The demurrer of the defendant, which specifically pointed out the lack of any verification of the petition, should have been sustained, and the subsequent proceedings were rendered nugatory by such error.

Judgment reversed. All the Justices concur.