Moody v. Cleveland Woolen Mills

133 Ga. 741 | Ga. | 1910

Evans, P. J.

(after stating the facts). When the interlocutory hearing was had, the court had overruled the defendant’s demurrer at a previous term of the court. The grounds of the demurrer were, that the petition was without equity; that no cause of action was alleged; that the plaintiffs had no lien; they had an adequate common-law remedy; that there was a misjoinder of parties and causes of action; and that copies of the pleadings and decree in the Moody & Brewster suit were not attached. Though exceptions pendente lite were taken to this ruling, its correctness is not now under review; because a judgment on demurrer can not be reviewed on a fast bill of exceptions. Until the judgment on demurrer is reversed, it is conclusive on the parties as to all questions necessarily involved in the decision of the points raised on demurrer. Georgia Northern Ry. Co. v. Hutchins, 119 Ga. 504 (46 S. E. 659). It does not appear whether the judge ruled that the subsequent amendment was of such materiality as to open up the whole case again for demurrer.. The grant of an interlocutory injunction is not a final judgment upon the whole law of the case. It is largely a matter of discretion, and the injunction continues pending the suit only as preservative of the existing status, and does not conclude the demurrant from subsequently urging his demurrer in term. Crovatt v. Baker, 130 Ga. 507 (61 S. E. 127). Upon exceptions taken to the grant of an interlocutory injunction, which mainly involves an exercise of discretion, where the court had previously overruled a demurrer, and adjudged that there was equity in the petition, and no ruling is made as to the effect of a subsequent amendment to the petition, inasmuch as this court can not go into the questions adjudicated on demurrer in the present case, we will not reverse the grant of an injunction and the appointment of receiver, unless there was an abuse of discretion. Did the judge abuse his discretion? The petition positively alleged that the plaintiffs and intervenors filed a petition against Moody & Brewster, alleging a general scheme to defraud them, and asked that the court take charge of the assets of the firm of Moody & Brewster by receivers and through them to administer the assets. They allege further, that, in compliance with this petition, receivers were appointed and the estate of Moody & Brewster was administered; that Moody was duly served, and particular reference as to the scope of the pleadings is made; that each of the petitioners in the present case intervened in that case, and by their respective interventions alleged a general scheme to defraud, and set out the fraudulent representations made to each petitioner, and the fact that petitioners believed the same to be true and acted upon the faith thereof, to their detriment and injury; that each of the petitioners averred his right to rescind the alleged sale, by reason of the fraud perpetrated upon him, and sought the right to reclaim his respective goods, to the extent to which they could be identified; and for more particular statement reference was made to the records of that case on the files of Fulton superior court; and that the case was referred to an auditor, who filed his report in which it was adjudicated that the petitioners were entitled to the relief prayed for, and in which the general scheme to defraud and the particular acts of fraud charged with reference to petitioners and others were duly adjudged in favor of the plaintiffs. As to these important allegations, which lay at the foundation of the plaintiffs’ right to extraordinary relief, the defendant filed an answer in which he said that for want of information he could neither admit nor deny them. The answer to these allegations was not direct. The defendant certainly knew whether he was a party to a litigation in which he was served with a copy of the pleadings, by virtue of which his assets were taken away and administered by a receiver. The scope of the pleadings is stated, in which his fraud is the gravamen of the complaint; and yet he says he has no information on the subject. The purpose of a preliminary injunction is to preserve the status, and the respective rights of the parties, until final adjudication, and such an injunction may be continued on the coming in of an answer which is evasive and indefinite as to the material allegations of the bill. Swift v. Swift, 13 Ga. 140. Considering the indefiniteness of the answer, in response to a very substantial ground of the plaintiffs’ equity, and the evidence introduced, we do not think the judge abused his discretion in the appointment of a receiver and the grant of an interlocutory injunction. See Civil Code, §5054; Bigham, v. Gorham, 52 Ga. 329; Horne v. Peacock, 122 Ga. 45 (49 S. E. 722); Raleigh & Gaston R. Co. v. Pullman Co., 122 Ga. 700 (50 S. E. 1008).

Judgment affirmed.

All the Justices concur.