Loyless v. Howell, No. 83

No. 83 | Ga. | Jul 15, 1854

By the Court.

Penning, J.,

delivering the opinion.

[1.] This Court has several times hold, that the granting and the continuing of the process of injunction, rest in discretion, to be governed by the nature of the case. (Holt et al. vs. Bank of Augusta, 9 Ga. R. 552. Dent vs. Summerlin, 12 Ga. R. 8. And see 13 Ga. 145.)

It has also been held, that it will not disturb a judgment made on what rests in discretion, unless the judgment be such as to show a flagrant abuse of the discretion. (Seely vs. State, 1 Kelly, 215. Johnson vs. Fowler & Newton, 3 Kelly, 117. Moody vs. Fleming, 4 Ga. R. 115.)

Is the judgment excepted to, in this case, such as to show a a flagrant abuse of discretion ? That is the sole question.

■ It is not. The answer, whether full or not, denies some of the allegations in the bill; and among them, the allegation that the defendant was selling liquors on the lot. (1 Kelly, 9. 8 Ga. 197, 562. 9 Ga. 95.)

The answer, too, is almost, if not altogether full, in its denial of the fundamental allegation of the bill, viz: the allegation that a term was left out of the bond by mistake.

And in other serious respects, the answer damages the case made by the bill.

And that case, itself, as stated, is far from strong. The bill contains no allegation, that the bond made to Allen, which was the source of Howell’s title, contained the stipulation againt the sale of ardent spirits. Without such an allegation, of some other to stand in its place and serve its purpose, it is not clear i.hat the bill contains any equity in it.

All things considered, we cannot pronounce the judgment complained of, to be one which shows an abuse of discretion, and therefore, we must affirm it.