Beacham v. Wrightsville & Tennille Railroad

54 S.E. 157, 125 Ga. 362, 1906 Ga. LEXIS 160

• Court: Supreme Court of Georgia
• Decided: May 14, 1906
• Status: Published

Opinion

Fish, C. J.

As will be seen by reference to the foregoing report of the ease, the title to the land in question was in dispute, and defendant was in possession. It was held in Vaughn v. Yawn, 103 Ga. 557: “The office of an injunction being, under the code of this State, merely to restrain and not to compel the performance of an act, this remedy is not available for the purpose of evicting a party from the actual possession of land, the right to which is in dispute between himself and another; and consequently such a result can not be indirectly accomplished by an order restraining the party in possession 'from further interfering with said lot of land, house and crop’ thereon. Such an order, being mandatory in its nature, would afford relief not within the proper scope of the writ ■of injunction. Civil Code, §4922. Russell v. Mohr-Weil Lumber Company, 102 Ga. 563.” To the same effect is Paschal v. Tillman, 105 Ga. 494. It follows that it was error in the present case for the court to enter a final decree that the defendant “be permanently ■enjoined from interfering with or interrupting the plaintiff . . in the full and free enjoyment of'the use and possession of the premises described in plaintiff’s petition, with the right [given to plaintiff] to remove obstructions now or hereafter placed on said premises by the defendant.”

2. The amendment offered by the defendant to his answer, and disallowed by the court, set up new matter of defense, after the time allowed for answer had expired, and the defendant failed to make the affidavit, prescribed by the statute, which was necessary in order to obtain the right to so amend his answer. Section 5057 of the Civil Code, as amended by the act of December 21, 1897 (Acts 1897, p. 35, Van Epps’ Code Supp. §6199), provides: “The defendant, after the time allowed for answer has expired, shall not in any case by amendment set up any new facts or defense of which notice was not given by the original plea or answer, unless at the time of filing such amended plea or answer containing the new matter he shall attach an affidavit that at the time of filing the original ¡olea or answer he did not omit the new facts or defense set out in the amended plea or answer for the purpose of delay, and that the amendment is not now.offered for delay, or unless, in the discretion of the court, the circumstances of the case or substantial justice between the parties require that such amendment be allowed without attaching such affidavit.” In the affidavit attached to the proposed amendment, the defendant did not swear that “at the time of filing the original plea or answer he did not omit the new facts or defense set out in the amended plea.or answer for the purpose of delay,” but merely swore that the amendment was “not offered for delay.” The judge was not bound to allow the amendment, and it is clear that there was no abuse of discretion in disallowing it.

Judgment reversed.

All the Justices concur.