Sands v. Marburg , 36 Ga. 534 ( 1867 )

Warner, C. J.

The error assigned to the judgment of the Court below in this case, is in overruling the general demurrer to the complainant’s bill. This was a bill filed by a creditor to restrain the defendant by injunction from fraudulently disposing of her goods to defeat his claim, under the peculiar state of facts stated therein, — and the question is whether a court of equity in this State has jurisdiction to do so. The debt of the complainant against the defendant was contracted in the State of Tennessee, where the bill alleges she was considered by the laws of that State as a free dealer. She not only threatened to dispose of her goods for the avowed purpose of defeating the collection of complainant’s debt, but had actually sold at auction in the city of Atlanta, seven hundred dollars’ worth of her goods for two hundred dollars. She not only contracted the debt with the .complainant in Tennessee as a free dealer, but she was contracting and disposing of her goods in this State as her separate property. The complainant could not hold her to bail, nor sue out an attachment against her property ; there she was in the city of Atlanta, openly threatening fraudulently to dispose of her goods to defeat the complainant’s demand, and actually proceeding to do so by making sale thereof at auction for less than half the value of the same. <

Was the complainant remediless in the Courts of this State? The 4119th section of the Revised Code declares, that-“Any person who cannot sue at law may complain in equity, and every person who is remediless elsewhere may claim the protection of a court of equity, to enforce any right recognised by the law.” By the 3149th section it is declared that equity, by a writ of injunction, may restrain the acts of private individuals, which are illegal or contrary to equity and good conscience, and for which no adequate remedy is provided at law. The granting and continuing of the injunction must always rest in the sound discretion of the Judge, according to the circumstances of each ease. Revised Code, section 3153. “ Courts of equity constantly decline to lay down any rule which shall limit their power and discretion as to the particular cases in which injunctions shall be granted or withheld. And there is wisdom in this course, for, it is impossible to foresee all the exigencies of society which may require their aid and assistance to protect rights or redress wrongs.” 2d Story’s Com. on Equity, 227, section 959. This extraordinary power of the Court, however, ought to be exercised with great caution, and applied only in very clear cases and in such manner as to prevent injustice and unnecessary injury.

In this case, the chancellor below allowed the injunction to be dissolved and the defendant restored to the possession of her goods, by giving bond and security to pay the eventual consideration money in the complainant’s suit. Taking the allegations in the complainant’s bill to be true, as the general demurrer thereto admits, it was, in our judgment, properly overruled.

Let the judgment of the Court below be affirmed,