Florida Central Railroad v. Cherokee Sawmill Co. , 137 Ga. 815 ( 1912 )

Lumpkin, J.

In the main, there was no error, or abuse of discretion, on the part of the presiding judge in granting an interlocutory injunction in part, but not to the full extent desired. He sought to preserve the status and to protect the parties until the final hearing. The evidence on vital points in the case was conflicting. Each party alleged that the contract was valuable to it, but'they differed about its construction, and each claimed that the other was violating it. While the interstate-commerce law was invoked, it was not so much to attack the entire contract as to deny a certain construction of it, or that certain acts should be done under it. A railroad company which is an interstate common carrier can not enter into a contract with a shipper which constitutes an unlawful or undue preference under the interstate-commerce act. Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U. S. 498 (31 Sup. Ct, 279). Whether or not there is any such discrimination in the present case is not raised or shown with such distinctness as to authorize this court, on exception to the grant of an interlocutory injunction maintaining the status until final trial, to reverse the action of the presiding judge. The rulings made in the headnotes need no elaboration. In two respects the presiding judge fell into error. He could not on that hearing adjudicate finally any question of fact, but could only pass on such questions so far as to determine the propriety of granting or refusing the interlocutory relief sought. Bleyer v. Blum, 70 Ga. 558; Payton v. Ford, 134 Ga. 587 (68 S. E. 300). And also he could not grant a mandatory injunction. Civil Code (1910), § 5499. Under some circumstances, he may grant an order restraining unlawful acts by one or both parties. He may refuse relief to a party who comes into court seeking equitable relief, but who is unwilling to do equity. If he finds that an injunctive order is being used to work wrong or oppression, upon application he may modify or revoke it. But he has not the power, upon such an interlocutory hearing, to command parties to do certain things and to appoint a person to see that they do so. Such affirmative action might be quite desirable, where parties indulge in what the judge terms in his opinion a “factional” controversy, but the law has not made provision for it. Probably the statement of the presiding judge as to his determination of what were the facts was not intended as a finality, and the mandatory feature of the order was an inadvertence. But it is better that they should be modified so as to be in strict accordance with law. '

Except as indicated in the headnotes and in this opinion, there was. no error in granting the interlocutory order. Direction is given that the presiding judge modify his order so as to make it conform hereto.

Judgment affirmed, with directions.

All the Justices concur.