Rudolph Wurlitzer Co. v. Jackson

134 Ga. 333 | Ga. | 1910

Beck, J.

(After stating the foregoing facts;) The only office of an injunction is to restrain; it can not compel a party to perform an act. Civil Code, § 4922. Full and unqualified recognition of this principle is to be found in numerous decisions of this court. The effect of the interlocutory injunction granted in this case, and to which exceptions are taken by the plaintiff in error, violates this well-established principle of our law. In effect, it directs the defendant to deliver the personal'property in controversy to the plaintiff in the equitable petition brought in the court below, seeking specific performance, a recovery of damages, and injunction. It is contended in the brief of counsel for defendant in error that the only effect of the interlocutory order granted in the ease was to preserve the status quo. Such a position is obviously untenable, in the face of the plain terms of the court’s order, which, while it does not order the defendant, Rudolph Wurlitzer Company, or the Southern Express Company to deliver the possession of the organ in question, does adjudge that the plaintiff, J. S. Jackson, is entitled to the delivery and possession of'the organ in question upon his giving certain notes for a specified sum and executing a bond conditioned “to indemnify the Southern Express Company against any loss they might sustain by virtue of the delivery of the organ to the plaintiff,” and a like bond to indemnify the Rudolph Wurlitzer Company. The language of the order is in effect a command by the court, requiring the defendants to perform an act,' — 'that is, to deliver the property in controversy to the plaintiff upon his giving certain bonds. We do not think that our law contemplates the granting of such an order as this in any case, as will appear from the reading of numerous decisions by this court where similar questions are involved.

Other grounds are urged as reasons for setting aside the order complained of in this case, but it is unnecessary to consider them, inasmuch as the judgment of the court below is reversed on the ground that it was without authority to grant an interlocutor injunction mandatory in its nature.

Judgment reversed.

All the Justices concur.