Powell v. Parker

38 Ga. 644 | Ga. | 1869

Brown, C. J.

1. This bill contains no specific charge of any particular acts of fraud, or fraudulent practices by the defendants, and in the absence of such specific allegations an injunction should not be granted for fraud perpetrated by the defendants, even in a case where the injury might be irreparable. If the complainant fears irreparable injury from the fraudulent acts of the defendants, he must set forth plainly and distinctly the grounds of his apprehension. •

2. There is no charge in this bill that the defendant Parker is beyond the jurisdiction of the Court, or that he is insolvent. The allegation is, that Parker has parted, with most of his property, which is subject to levy and sale, except his residence. This may be true, and he may still be abundantly solvent. The bill does not show how much property he had ■ or how much is left after he has parted with most of it. The purchase-money of the entire tract of land is only $5,500, and the litigation about the title applies to but one lot — the most important one, it is said — but the damage in case of failure of title to that lot would be considerably less than the whole sum paid for the tract, consisting of several lots and parts of lots. In addition to the other property, whatever it may be, which it is admitted Parker owns, the bill states that he is the owner of $15,000 to $20,000 of the capital stock of the South-Western Railroad.Company. This, without reference to his other property, is much more than enough to pay any damages that the complainant may expect to recover in case of a failure of the title to the lot of land in dispute.

The bill further alleges that the railroad stock, by law, is not subject to levy and sale. This allegation seems to have been made' without reference to section 2584 of the Eevised Code, which provides that such shares may be levied on and sold, either under attachment or fi. fa., in any county through which the railroad passes. We think the Judge did right in refusing to grant the injunction, as the bill, sets up no sufficient equity to entitle the complainant to it,

3. In this case, the J udge ordered that the defendants show cause, on a certain day, why an injunction should not be granted, “ and that in the meantime, they and each of them, abstain and desist from any and all interference or disposition of said railroad stock therein named, until the further order of this Court, under a penalty of ten thousand dollars each.” It is claimed that this temporary injunction was such a judgment of the Court below, as may be continued in force till the hearing in this Court, by bond given to operate as a supersedeas of the judgment refusing the injunction. We think not. The temporary injunction expired of its own limitation when the J udge, on the hearing, refused to gi’ant the injunction, and no further vitality could be given to it, nor was it continued in force pending the proceedings in this Court, by a supersedeas of the judgment refusing the injunc- . lion upon the hearing.

The writ of injunction is harsh remedy, and should only be granted in cases, where the parties applying for it show themselves clearly entitled to it under well settled rules of legal equity. Again, the Chancellor has a large legal discretion in granting, or refusing, or dissolving injunctions, which should not be controlled by this Court except in cases of manifest abuse of that discretion. Temporary injunctions arc frequently granted by the Chancellor on an ex parte showing, to prevent supposed injuries till both- sides can be heard. And it might work great mischief if they could be continued in force till a hearing in the Supreme Court, by virtue of the bill of exceptions, operating as a supersedeas of the judgment refusing the injunction on the hearing.

We do not think section 4203 of the Eevised Code was intended to apply to orders of this character, or that they are continued in force by the bill of exceptions operating as a supersedeas, when bond is given under said section. They are interlocutory orders of the Chancellor, which cease to operate when his order sets them aside. In this case, the Chancellor ordered that his judgment refusing the injunction “operate as a limit” to the temporary injunction, which had heretofore been granted to hold till the further order of the Court. We see no error in this. We hold that the temporary injunction ceased to operate from the time when said order was granted.

Judgment affirmed.