Bradley v. Roberts

210 S.E.2d 236, 233 Ga. 114, 1974 Ga. LEXIS 696

• Court: Supreme Court of Georgia
• Decided: October 25, 1974
• Docket: 29302
• Status: Published

Opinion

Ingram, Justice.

This appeal is from an interlocutory order, entered after a hearing in the Superior Court of Whitfield County, in which the trial court granted in part and denied in part the appellant’s prayers for an interlocutory injunction.

The notice of appeal states that, "[t]he clerk will please include all of the records on this appeal, but not the transcript of the evidence as this is a question of law.”

The sole enumeration of error asserts that the trial judge "erred in its order . . ., partially denying the plaintiff’s application for an interlocutory injunction in that, without authority he undertook to finally adjudicate issues of fact which had been drawn into issue by the pleadings.”

There is no transcript of the evidence considered by the trial court in granting in part and denying in part the plaintiff’s prayers for an interlocutory injunction. There is included in the record on appeal, however, an affidavit from the trial judge that, while a finding of fact was made for the purposes of the interlocutory injunction, there has been no final adjudication of the issues of fact.

We agree with appellant that, "[o]nthe hearing of an application for an interlocutory injunction, the trial judge should not undertake to finally adjudicate issues of fact, but should determine questions of evidence only to the extent necessary to decide whether interlocutory relief should be granted.” Oliver v. Forshee, 224 Ga. 200 (1) (160 SE2d 828). However, it appears to us that this is what the trial court did in the present case. The finding of fact made in the trial court’s order is not final and is not conclusive between the parties on the final trial. See Board of Commrs. of Walton County v. Dept. of Public Health, 229 Ga. 173 (3) (190 SE2d 39).

The trial court’s order partially denying the plaintiff’s prayers for injunctive relief was not erroneous as a matter of law, and since there is no transcript of the evidence considered by the trial court its interlocutory order is presumed to be correct. Allen v. Smith, 223 Ga. 265 (2) (154 SE2d 688).

Submitted October 11, 1974 — Decided October 25, 1974. McDonald, McDonald & McDonald, Ralph F. Martin, Jr., for appellant. Charles Pannell, Jr., for appellees.

Judgment affirmed.

All the Justices concur.