COMMONWEALTH UNITED CORPORATION v. Rothberg , 221 Ga. 175 ( 1965 )

221 Ga. 175 (1965) 143 S.E.2d 741

COMMONWEALTH UNITED CORPORATION
v.
ROTHBERG, et al.

23011.

Supreme Court of Georgia.

Argued June 15, 1965. Decided July 12, 1965.

Hansell, Post, Brandon & Dorsey, Charles E. Watkins, Jr., Hugh M. Dorsey, Jr., R. W. Crenshaw, Jr., for plaintiff in error.

George G. Finch, Powell, Goldstein, Frazer & Murphy, B. D. Murphy, James N. Frazer, Harold Sheats, Walter W. Aycock, contra.

Cook, Justice.

"The general rule is that an action [at law] will not be enjoined at the instance of one not a party thereto." Stone v. King-Hodgson Co., 140 Ga. 487, 491 (79 S.E. 122). "Equity will not enjoin the proceedings and processes of a court of law, unless there be some intervening equity or other proper defense of which the party, without fault on his part, cannot avail himself at law." Code § 55-103.

In this case the plaintiff seeks to enjoin the prosecution of a suit to which it is not a party and by the result of which it will not be bound.

The fact that the plaintiff in the action sought to be enjoined is a majority stockholder of the defendant corporation in that action did not operate to make the action a collusive one, or the same person both plaintiff and defendant. Waycross Air-Line R. Co. v. Offerman & Western R. Co., 109 Ga. 827, 828 (35 S.E. 275); Shingler v. Shingler, 184 Ga. 671, 672 (192 S.E. 824); Independent Gasoline Co. v. Bureau of Unemployment Compensation, 190 Ga. 613, 614 (10 SE2d 58). Nor would collusion, if it existed, constitute grounds for enjoining the proceeding at the suit of one not a party and who would not be bound by the judgment. Smith v. Cuyler, 78 Ga. 654, 659 (3 S.E. 406).

For the foregoing reasons, it can not be said that the trial judge erred in denying the interlocutory injunction.

Judgment affirmed. All the Justices concur.