171 Ga. 627 | Ga. | 1930
Biggers filed an equitable petition against Noland, alleging that petitioner was in possession of a certain building which he operated as a hotel; that defendant took rooms in the hotel, and was supposed to pay so much rent for same each week, and did pay the amount for a time as agreed; that shortly after-wards the defendant began to accuse the manager of the hotel of irregularities in his management, and began “trying to usurp the power of and acted as clerk of the hotel, creating dissension and dissatisfaction not only between himself and the manager but among the guests of the hotel, causing some of them to threaten to leave;” that, after the discharge of the manager referred to, petitioner employed one Starnes to act as clerk and manager; that when Starnes attempted to move into the hotel and had his trunks and baggage brought there in a truck, defendant ordered the truck away, and refused to let Starnes enter the place, to plaintiff’s damage; that the defendant is insolvent, threatens bodify damage to petitioner, and “unless he is ousted in the nature of a dispossessory warrant and enjoined from coming about or in any way hindering or molesting petitioner’s place of business, petitioner will be irreparably damaged by most if not all of his present guests forthwith leaving, and the general reputation of his place of business materially damaged and injured;” that defendant is only a “roomer,” and is now in arrears in a stated sum on his rent; that petitioner has demanded the amount, and unless the court issue an order equivalent to a distress warrant, defendant will defeat the amount of rent which he owes when he is ousted; that, in addition to all this, defendant has bodily and with physical force seized the hotel register-book, the cash-book, and card-file system, which carry the names and all the data about the guests, and has locked them in his apartment or otherwise concealed them.
By an amendment it is alleged that the defendant has caused some of the guests of-the hotel, naming them, to leave; that “de
Petitioner’s prayers were, “that this court of equity decree, that, because of the insolvency of defendant, the irreparable nature of the damage being done, and other equitable reasons, that equity lay hold of the matter in the terms of law and equity, issue an order embodying the fruits of a distress warrant, and hold defendant’s baggage and chattels in said hotel for rent; that the same order direct that the sheriff immediately dispossess said defendant of said rooms and oust him from said hotel, and that the defendant turn over the cash-register of the hotel, the card-filing system, and the cash-book and all cash he may have collected, to petitioner; that the court temporarily and permanently restrain defendant from coming
To this petition the 'defendant filed a general demurrer, and to the overruling of this demurrer he excepted.
The court did not err in overruling the demurrer. While it is true that an injunction can only restrain and can not compel a party to perform an act, as declared in § 5499 of the Code, there is equitable relief called for by this petition which does not in any way fall within the inhibitory terms thereof. In section 5490 of the Code it is provided that “Equity, by a writ of injunction, may restrain . . a threatened or existing tort, or any other act of a private individual or corporation, which is illegal or contrary to equity and good conscience, and for which no adequate remedy is provided by law.” It is insisted in the argument of counsel for plaintiff in error that an injunction can only restrain; that it can not compel a party to perform an act; and that in this ease the party seeks an order to compel performance of certain acts by the defendant. It is insisted that a court of equity will not oust possession of a party from a building or use of a building. Whether these particular contentions should be sustained or not we do not here decide; for there is much more than a prayer for ouster and a prayer for the restoration of books, papers, etc., in this ease. There is a prayer for general relief under the alleged facts. And there is no complaint of the overruling of any special demurrer; we are dealing with' the question as to whether a general demurrer to the petition should have been sustained; and it is clear that a part of the relief sought by the plaintiff should be granted, if the allegations in regard thereto are sustained by proof. If the defendant, an occupant of a room in the plaintiff’s hotel, is constantly interfering with the management of the hotel, with the clerk and manager employed by the owner; if there be such conduct on his part relatively to the guests as is alleged here, and if he is using the telephone to make long-distance calls, without paying for the same, and thereby making the owner of the hotel liable-therefor, he should be restrained and enjoined from continuing those acts. And if the plaintiff is entitled to any equitable relief