Lewis v. Citizens Exchange Bank

Grice, Presiding Justice.

This case arose when Bill Lewis sought to enjoin the enforcement of a judgment rendered in the Superior Court of Atkinson County, which directed the sheriff to seize a tractor owned by him and deliver it to the Citizens Exchange Bank. He alleged that this judgment was rendered in a trover action brought by the bank against Henry Morris Lewis, who was the only party named or served as defendant therein, but that he, Bill Lewis, filed a claim to the property.

On March 9, 1972, the trial court entered the following order, which is appealed from: "The foregoing matter coming on for hearing this date, and argument of counsel for both parties; it is the judgment of the court that the motion of defendants to dismiss the complaint should be sustained on the ground that said complaint fails to state a cause of action and shows on its face that plaintiff is not entitled to the relief sought, because the same was not sworn to and there has not been any testimony under oath to sustain plaintiff’s position. The restraining order heretofore issued by the court is hereby vacated . . .”

We find no error.

Code Ann. § 81A-165 (b) (Ga. L. 1966, pp. 609, 665; 1967, pp. 226, 240) declares that "No temporary restraining order shall be granted without notice to the adverse party unless it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before notice can be served and a hearing had thereon.”

Code §81-110 requires that "Petitions for a restraining order, injunction, receiver, or other extraordinary equitable relief shall be verified positively by the petitioner or supported by other satisfactory proofs.”

The prayers of the appellant’s complaint were that the appellees be "restrained and enjoined” from seizing or interfering with his property. However, the record shows that the above provisions were not complied with. Therefore, the order of the trial court is

Affirmed.

All the Justices concur. Nichols, Undercofler and Gunter, JJ., concur specially.