Sachs v. Dempsey , 203 Ga. 438 ( 1948 )

An abuse of discretion is not shown in the grant of the interlocutory injunction in this case.

No. 16126. MARCH 19, 1948. Mrs. Thedral Dempsey filed her petition against Harry Sachs in Fulton Superior Court, and in brief alleged: The defendant agreed to purchase for her, property located at 2100 Howell Mill Road, and by fraudulent means the deed was taken in the defendant's name. She has paid to the defendant a stated sum and has tendered other sums to him for a transfer of the title to her. She prayed for a temporary and a permanent injunction to prevent the sale and encumbrance of the property; that the defendant be enjoined from molesting or intimidating her; that the deed to the defendant be canceled; that the amount he has invested in the property be determined, and the title be vested in her by decree of the court; and for other relief.

A temporary restraining order was granted and a rule nisi issued. The defendant filed general and special demurrers to the petition, and an answer, in which he denied the substantial allegations of the petition. He further alleged in his answer that the petitioner was indebted to him in a stated sum for money had and received, and a stated sum as rent of the property. At the hearing the trial judge declined to rule on the demurrers, and after the introduction of evidence passed an order temporarily restraining the defendant from alienating or changing the status of the property and interfering with the possession of the property by the petitioner. The order further provided that the petitioner's possession was conditioned upon her paying into court the sum of $175 per month, beginning within ten days from the date of the order. The exception here is to the granting of the interlocutory injunction. Counsel for the plaintiff in error contend in their brief that the petition failed to set forth a cause of action for any relief, and that the trial court should have heard and sustained the demurrers. Whether or not the better practice would be to rule upon demurrers at the hearing for interlocutory injunction, the court is not compelled to do so. Vance v.Vogel, 176 Ga. 132 (167 S.E. 112). This court can not decide any question that is not made by a specific assignment of error in the bill of exceptions (Code, § 6-1607), and the sufficiency of the petition to withstand the demurrers is not presently before the court.

"The grant or denial of a temporary injunction rests in the sound discretion of the judge, according to the circumstances of each case (Code, § 55-108); and where the evidence is conflicting, his decision will not be reversed, unless it is apparent that he has abused the discretion which the law gives him." Jones v. Lanier Development Co., 188 Ga. 145 (2 S.E.2d 923). See also Blanton v. Crosby, 189 Ga. 297 (5 S.E.2d 780); Moon v. Clark, 192 Ga. 47 (14 S.E.2d 481). The evidence in this case is in sharp conflict, and the trial court required the petitioner (defendant in error in this court) to pay into the registry of the court the exact amount per month which was alleged in the defendant's answer to be the rental value of the property. Under these facts this court will not hold that the judge abused the discretion which the law vests in him. Direction is given, however, that the word "permanently" appearing in the second line of the second paragraph of the restraining order be stricken, and the word "temporarily" be inserted in lieu thereof, so that the order in all respects will conform with the evident intention of the trial judge; the order clearly showing that the injunction granted was only "until the further order of the court."

Judgment affirmed, with direction. All the Justices concur,except Wyatt, J., who took no part in the consideration ordecision of this case.