22 S.E.2d 505 | Ga. | 1942
1. It was not erroneous to strike, on motion, that part of the defendant's response which set up that previously the complainant on her own application had been appointed temporary administratrix of the estate of defendant's intestate, and had paid certain debts of the estate, since the matters therein set up were immaterial. Under the allegations and prayers of the petition, the ruling in Hardeman v. Ellis,
2. "An injunction should not issue on mere apprehension." Behr
v. Macon,
Judgment affirmed in part and reversed in part. All the Justices concur. except Hewlett, J., not participating.
The defendant demurred on the following grounds: (1) The allegations of the petition are insufficient to authorize a court of equity to interfere with the regular administration of the estate. (2) The petition fails to allege any facts which would authorize or justify a court of equity in granting any of the relief prayed for, or an injunction or restraining order. The defendant filed also her sworn response. The petitioner moved to strike the following paragraphs:
(1) "On the 29th day of April, 1942, the petitioner, Lillian E. Adams, alias Lillie E. Sims, filed an application in the court of ordinary of Muscogee County, Georgia, praying her appointment as temporary administratrix of the estate of Thomas M. Sims, deceased, and thereafter on said date an order and judgment was passed by said honorable court, appointing her as such administratrix and directing that letters of administration issue to her upon her taking the usual oath of office and giving of bond in the sum of $5000.
(2) "On said date petitioner subscribed to said oath, and qualified by giving the bond required by said order of the court of ordinary, and letters testamentary were issued to her, and she thereafter entered upon the administration of said estate of Thomas M. Sims, collecting of assets and paying debts of the deceased and of his estate."
The court overruled the demurrer to the petition, and sustained the plaintiff's demurrer to the paragraphs just quoted, on the ground that the facts therein set forth are not relevant and not material to the cause.
Neither party introduced evidence. Only the petition and the response were considered by the judge. He passed an order restraining the defendant from selling or obtaining from the court of ordinary an order to sell any of the property of the estate, from paying out or distributing to any heir or distributee, and from interfering with the petitioner's living in the residence of Thomas M. Sims. The defendant excepted to the rulings stated above.