Booker v. Scott , 214 Ga. 327 ( 1958 )

Mobley, Justice.

The petitioner brought this action to enjoin the defendant from selling certain realty, located in DeKalb County, which the defendant was advertising for sale under a power of sale contained in a security deed given by the petitioner to the defendant, and to enjoin the sale of certain personal property covered by a chattel mortgage from the petitioner to the defendant. At the interlocutory hearing the trial court, after hearing evidence, entered an order providing that the petitioner should, within ten days, pay a stated sum of money to the defendant; that, if the defendant refused to accept said sum, the money should be deposited into the registry of the court pending the final hearing on the matter; that, upon the petitioner’s failure to comply with the order, the temporary restraining order previously granted should be dissolved and the defendant could then proceed to foreclose on the property in question; and taxing all court costs against the petitioner. To this order the petitioner has excepted. Held:

1. “Upon an application for an interlocutory injunction the superior court is without jurisdiction to enter a decree finally fixing the amount of money to be paid by either of the parties to the other.” Leary v. First Nat. Bank of Shellman, 177 Ga. 179(2) (170 S. E. 84). See also Florida Central R. Co. v. Cherokee Sawmill Co., 137 Ga. 815, 821 (74 S. E. 523); Milltown Mfg. Co. v. Bray & Co., 149 Ga. 151 (2) (99 S. E. 468); City of Waycross v. Waycross Savings & Trust Co., 146 Ga. 68 (90 S. E. 382); Wallace v. Boddie, 138 Ga. 30 (5) (74 S. E. 756). A final decree can not be entered in any case at an interlocutory hearing. Since a decree assessing all costs of court against one of the parties to the action is a final decree, the trial court is without authority to enter such a decree at an interlocutory hearing. Rosenberg v. Wilson, 154 Ga. 625 (2) (115 S. E. 7). The instant case is distinguishable from those cases wherein the trial court, in ordering the dissolution of a prior temporary restraining order, set forth facts in its decree upon which the order was based. In dismissing as premature a writ of error in such cases, this court has held that the language of the trial judge giving his reasons for dissolving the restraining order was not the judgment of the court. See Wofford Oil Co. v. City of Nashville, 177 Ga. 460 (170 S. E. 369); Touchton v. Henderson, 158 Ga. 819 (124 S. E. 529). In the instant case, the trial judge did not merely give his reasons for dissolving the temporary restraining order, but ordered the petitioner to pay the defendant a stated sum of money or to deposit said sum into the registry of the court, and further ordered the petitioner to pay all court costs. Since on interlocutory hearing the trial court is without authority to finally adjudicate issues of fact, but should pass on such questions only so far as to determine whether the evidence authorizes the grant or refusal of the interlocutory relief (Florida Central R. Co. v. Cherokee Sawmill Co., 137 Ga. 815; City of Waycross v. Waycross Savings & Trust Co., 146 Ga. 68; Milltown Mfg. Co. v. Bray & Co., 149 Ga. 151, all supra), it was error in this case to enter a decree fixing finally an amount to be paid by the petitioner to the defendant and assessing all court costs against the petitioner. So much of the order of the trial court as orders the petitioner to pay a specific sum to the defendant and taxes all court costs against the petitioner is reversed, and direction is given that the decree of the court be modified in accordance with the above rulings. City of Waycross v. Waycross &c. Co., 146 Ga. 68; Wallace v. Boddie, 138 Ga. 30, both supra.

Submitted June 10, 1958 Decided July 11, 1958 Rehearing denied July 22, 1958. F. L. Breen, for plaintiff in error. W. Harvey Armistead, contra.

2. Since the only remaining portion of the order here excepted to is in effect an order dissolving the prior temporary restraining order, no question is presented for decision upon the grant or refusal of an interlocutory injunction. The exceptions to the exclusion of certain evidence offered by the petitioner are not passed upon because to do so would require an examination into the merits of the question of the grant or denial of an injunction.

Judgment reversed with direction.

All the Justices concur.