Harvard v. Walton , 243 Ga. 860 ( 1979 )

Hill, Justice,

concurring in judgment.

Shaffer v. City of Atlanta, supra, is one of a spotty line of cases indicating that a sworn petition constitutes evidence upon which the grant of a temporary injunction (as opposed to a temporary restraining order) would be approved by this court. 15 EGL 284, 286, Injunctions, § 16 (1969). Regarding the difference between temporary injunctions and restraining orders, see Leverett, Hall et al., Ga. Proc. & Prac. § 6-15 (1957).

Although in certain emergencies a temporary restraining order may be issued without notice and hearing, Code Ann. § 81A-165 (b), no temporary injunction shall issue without notice, Code Ann. § 81A-165 (a) (1), and hearing, Code Ann. § 81A-165 (a) (2). In my view, the purpose of such notice and hearing is to hear evidence, not to read the sworn petition. Basing a temporary injunction upon a sworn petition in a contested case defeats the purpose of conducting the hearing.

Perhaps local rules of court specifying that temporary injunctions will be heard on affidavits, by persons competent to testify, based upon personal knowledge setting forth admissible evidence, see Code Ann. § 81A-156 (e), would be permissible if such rules authorized the judge to require live testimony in cases in which he deemed it to be necessary.

In any event, in the case before us the trial judge heard evidence as I believe he should have done. I therefore concur in the judgment.