Everett v. Tabor , 119 Ga. 128 ( 1903 )

Lamar, J.

(after stating the foregoing facts.) An injunction will not usually be granted where a complainant’s right is not clear. He should state by his pleadings a case which does not rest upon doubtful or disputed principles of law. This he did in the present case. For equity will not only relieve against a judgment obtained by fraud, but against one which has been properly rendered, where the losing party has a meritorious defense, and is prevented by the fraud of the other from entering an appeal or making a motion for a new trial. Civil Code, §§4915,4913; Markham v. Angier, 57 Ga. 43; Marchman v. Sewell, 93 Ga. 653; Thompson v. Laughlin, 91 Cal. 313; Sanderson v. Voelcker, 51 Mo. App. 333.

But the defendant insists that the injunction was properly refused, because the defendant denied the allegations in the bill. There are, however, exceptions to the rule that an injunction will be refused where the defendant’s answer swears off the equity. Holt v. Bank of Augusta, 9 Ga. 554; Coffee v. Newsom, 8 Ga. 449; Cottle v. Harrold, 72 Ga. 831 (7). For while it is true that the complainant must always establish to the reasonable satisfaction of the chancellor the existence of the fraud, or the fact on which the right is predicated, this does not mean that he must establish it beyond controversy. A denial by the defendant, or a conflict in the evidence, does not necessarily require a refusal of the interlocutory relief. In all such cases the chancellor must exercise a sound discretion. Civil Code, § 4920. If the evidence for the complainant is weak, and that for the defendant strong, the injunction could be refused. If that for the complainant is strong, and that for the defendant weak, or even if it be in practical equipoise, the injunction should be granted or refused according to the peculiar circumstances of the particular case. There should be a balance of conveniences, and a consideration whether greater harm might result from refusing than from granting the relief prayed for. If the grant of an injunction in such a case would operate oppressively to the defendant, the restraining order should be refused; but if it appears that if the injunction were denied the complainant would be practically remediless in the event he should thereafter establish the truth of his contention, it would be strong reason why interlocutory relief should be granted. The delay to one party would not counterbalance the irreparable injury which might flow to the other, if the chancellor made a mistake in passing on the disputed issue of fact. Under such circumstances it would generally be a wise exercise of discretion to preserve the right by preserving the status. But, giving full effect to these principles, a reversal is not demanded. For although the solvency of a plaintiff in fi. fa. is by itself no reason why the enforcement of a fraudulent judgment should not be enjoined (Sanderson v. Voelcker, 51 Mo. App. 328 (3), yet where the fact of fraud is squarely denied, and the holder of the execution is not alleged to be insolvent, the refusal to grant the injunction does not dismiss the bill, nor prevent the bringing of other appropriate action for damages. No irreparable injury will result to the complainant, if he can eventually satisfy a jury of the invalidity of the judgment. Sharpe v. Kennedy, 51 Ga. 257, 263; Farmers Bank v. Reese, 27 Ga. 398.

Judgment affirmed.

All the Justices concur.