Moses v. Flewellen

42 Ga. 386 | Ga. | 1871

Lochrane, C. J.

A fi. fa. obtained in 1867, in favor of D. II. Baldwin & Company, was levied on the land of Flewellen, and the property sold in March, 1869. Before the sale, Flewellen notified the sheriff that he would move to open a judgment held by Bradley, which was of older date, before June, 1868, which he had. Moses by transfer, became the purchaser of the property, and also of the two judgment fi. fas; and there being no motion made at the ensuing term of the Court to open the Bradley judgment, under the Relief Act of 1868, Moses demanded the money in the sheriff’s hands to be applied first to it, which he did, crediting the balance on the younger, or Baldwin fi. fa; then it was levied for the balance upon Flewellen’s plantation in Quitman county. This bill was filed, and injunction moved to stop the sale under the levy, and the main ground of. equity relied on, grows out of the fact that the proceedings to scale the Bradley judgment were still pending and undisposed of at the time this disposition of the money took place. It appears the papers were filed, but not docketed by the Clerk, and that the anouncement by the Judge at the term that he would not take up cases under the Relief Act, prevented Flewellen from making his motion at the time. His bill was that he has a good defense, etc., and presents the fact of notice to the parties, and insists upon the injustice of appropriating the $7,000 00, raised from the sale in the manner set out. Upon the hearing of bill and answer, the Judge granted the injunction requiring bond: Held, under the repeated rulings of this Court at the present term, the original jurisdiction over granting or refusing injunctions is vested by law in the Court below, and it is only in cases where there has been an abuse of the discretion — that is to say, an error in law is committed by the Judge below in granting or refusing an injunction — that this Court will interfere. And under the facts in this case we are satisfied the Court has not abused the discretion vested in him, by granting the injunction as prayed.

Judgment affirmed.