Burns v. Hale

133 S.E. 857, 162 Ga. 336, 1926 Ga. LEXIS 181

• Court: Supreme Court of Georgia
• Decided: June 18, 1926
• Docket: No. 5257
• Status: Published

Opinion

Hines, J.

1. An interlocutory injunction which, if enforced, would result in the dispossession of the defendant and the admission of the plaintiff into the possession of the premises in controversy, is in legal effect a mandatory injunction; and the relief afforded by such injunctive order is not, under our law, within the proper scope of the writ of injunction. Russell v. Mohr-Weil Lumber Co., 102 Ga. 563 (29 S. E. 271); Vaughn v. Yawn, 103 Ga. 557 (29 S. E. 759) ; Glover v. Newsome, 134 Ga. 375 (67 S. E. 935) ; Mize v. Herring, 137 Ga. 815 (74 S. E. 534) ; Dekle v. McLeod, 144 Ga. 290 (86 S. E. 1082) ; Brown v. Toole, 150 Ga. 196 (2) (103 S. E. 226); Trudie Turpentine Co. v. Pearson, 159 Ga. 387 (125 S. E. 862); Civil Code (1910), § 5499.

2. On the hearing of an application for temporary injunction the judge should not grant a permanent injunction, but only one of an ad interim character, to remain of force until the final trial. Southern Cotton Oil Co. v. Overby, 136 Ga. 69 (70 S. E. 664) ; Brown v. Smith, 150 Ga. 111 (102 S. E. 813).

3. While the extraordinary remedy of injunction does not lie in favor of one who has a complete and adequate remedy at law (Rice v. Macon, 117 Ga. 401, 43 S. E. 773; Chestatee Pyrites Co. v. Calenders Creek Gold Mining Co., 118 Ga. 255, 45 S. E. 267; Detwiler v. Bainbridge Grocery Co., 119 Ga. 981, 47 S. E. 553), injunction will lie to prevent a multiplicity of suits (Chestatee Pyrites Co. v. Cavenders Greek Gold Mining Co., supra), and to prevent continuing trespasses and continuing acts of waste. Martin v. Pattillo, 126 Ga. 436 (55 S. E. 240) ; Caverly v. Stovall, 143 Ga. 705, 708 (85 S. E. 844) ; Cartledge v. Ashford, 152 Ga. 674 (110 S. E. 907). The defendant being charged with continuing acts of trespass and waste, and there being some evidence which would authorize the trial judge to find that these charges were true in part, we can not say that the judge was not authorized to grant a temporary injunction against such waste and trespasses until the final trial of the case.

No. 5257. June 18, 1926.

4. We reverse the judgment of the trial judge because he granted a permanent injunction against the waste and trespasses of which the plaintiff complained, and because he enjoined the defendant, his croppers and tenants, from going upon the rented premises, unless the defendant would pay within a named time certain rents claimed by the plaintiff to be due him by the defendant; the injunction in this respect being mandatory, and having the effect of dispossessing the defendant and turning oyer to the plaintiff possession of the premises upon the failure of the defendant to pay such rent.

Judgment reversed.

All the Justices concur. A. 0. Wheeler, for plaintiff in error. J. B. G. Logan and 8. B. Jolly, contra.