Terry v. Warner Robins Supply Company, Inc. , 225 Ga. 5 ( 1969 )

225 Ga. 5 (1969) 165 S.E.2d 731

TERRY
v.
WARNER ROBINS SUPPLY COMPANY, INC. et al.

24944.

Supreme Court of Georgia.

Argued December 9, 1968. Decided January 9, 1969.

W. M. Mathews, Jr., for appellant.

Aultman, Hulbert, Buice & Cowart, Roy N. Cowart, Wisse & Kushinka, George Kushinka, Thomas M. Jackson, for appellees.

ALMAND, Presiding Justice.

This appeal is from an order dissolving a temporary injunction.

The appellant filed her petition seeking to restrain two of the appellees from proceeding to advertise and foreclose by sale certain described real estate under powers of sale contained in deeds to secure debt. On the presentation of the petition, the court granted a temporary injunction on August 1, 1968.

On September 3, 1968, the court entered an order reciting that evidence had been heard on the question, and dissolving the temporary injunction. This order is enumerated as error.

The record does not contain the evidence upon which the order is based.

The appellees have moved to dismiss the appeal on the ground that the order from which the appeal is taken is not an appealable judgment. Held:

1. Under the provisions of the Appellate Practice Act of 1965, an appeal may be taken from an order dissolving a temporary restraining order. Code Ann. § 6-701 (Ga. L. 1965, p. 18). The motion to dismiss the appeal is denied.

2. The determination of whether or not the court erred in dissolving the restraining order requires a consideration of the evidence. There being no evidence in the record, we assume that the order complained of is correct. Giles v. Peachtree Pantries, 209 Ga. 536 (74 SE2d 545).

Judgment affirmed. All the Justices concur.