Fender v. Hendley , 195 Ga. 498 ( 1943 )

1. There being no allegation in the petition that the plaintiff is in possession of the land, but on the contrary the petition containing an averment that the defendant therein fails and refuses to yield possession to plaintiff, who is alleged to be the owner thereof, it was erroneous to enjoin the defendant from in any manner interfering with the possession of the plaintiff in and to the land in question, for the reason that the injunctive order was mandatory in its nature, and not within the proper scope of the writ of injunction. Code § 55-110; Brown v. Toole, 150 Ga. 196 (2) (103 S.E. 226); Cannon v. Montgomery, 184 Ga. 588 (3) (192 S.E. 206); Slaughter v. Land, 190 Ga. 491 (2) (9 S.E.2d 754); Braswell v. Palmer, 191 Ga. 262 (4) (11 S.E.2d 889).

2. Since the foregoing ruling is controlling, the remaining assignments of error, all of which relate to rulings on the evidence, deal with questions which do not affect the result, and therefore need not be considered.

Judgment reversed. All the Justices concur.

No. 14454. MARCH 10, 1943. Mrs. Ollie Lee Hendley filed her petition against Martin Fender, which as amended alleged a state of facts on which petitioner contended that she had title to the land in controversy. The prayer was, for injunction restraining the defendant from refusing crops; for a decree adjudging title in her; and for general relief. The petition related also to certain items of personalty; but the bill of exceptions recites that at the hearing it was agreed that all matters as to personal property be eliminated. The petition contains no averment that the plaintiff is in possession of the land, but on the contrary there is an averment that the defendant fails and refuses to yield possession thereof to petitioner, failing and refusing to permit her to go upon said land for the purpose of planting fifteen acres of oats from which the crops had been gathered; and that the defendant will continue to interfere with her possession of said land unless enjoined and restrained from so doing by the court.

Error is assigned upon certain rulings of the court in relation to the admission of testimony, and on the granting of the interlocutory order, to which the defendant excepted.