Gilstrap v. Palmour Hardware Co.

Supreme Court of Georgia

Gilstrap v. Palmour Hardware Co.

152 S.E. 53, 170 Ga. 27, 1930 Ga. LEXIS 390

CourtSupreme Court of Georgia

DecidedFebruary 12, 1930

DocketNo. 7109

StatusPublished

Cited by2 cases

This text of 152 S.E. 53 (Gilstrap v. Palmour Hardware Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gilstrap v. Palmour Hardware Co., 152 S.E. 53, 170 Ga. 27, 1930 Ga. LEXIS 390 (Ga. 1930).

Pincite

Opinion

Atkinson, J.

An equitable action was instituted to enjoin enforcement of an execution issued from a court of law, on the ground that the judgment on which tlie execution was based had been obtained by fraud. It was alleged tha-t after the petition and process in the first suit had been served upon the defendants, one of them, in his own behalf and as agent for the other, entered into a valid agreement with tire plaintiff for withdrawal of that suit; that, relying upon such agreement, this other defendant (the plaintiff in the equitable action), having a good defense (which was fully set out), did not file it; that, in violation of the agreement, the plaintiff failed to withdraw the suit, and at the next term entered judgment by default; that defendant (plaintiff in the present action) did not know of the judgment until the execution was levied on her property, whereupon and immediately she instituted this action for injunction. The answer denied that any agreement had been made for withdrawal of the suit. At an interlocutory hearing the judge on conflicting evidence refused a temporary injunction. Held:

1. The discretion of the judge in refusing the injunction will not be disturbed.

2. The case differs from Beverly v. Flesenthall, 142 Ga. 834 (83 S. E. 942), decided on demurrer, which did not involve any conflict of evidence. Jvidgment affirmed.

All the Justices concur.

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Atkinson, J.

An equitable action was instituted to enjoin enforcement of an execution issued from a court of law, on the ground that the judgment on which tlie execution was based had been obtained by fraud. It was alleged tha-t after the petition and process in the first suit had been served upon the defendants, one of them, in his own behalf and as agent for the other, entered into a valid agreement with tire plaintiff for withdrawal of that suit; that, relying upon such agreement, this other defendant (the plaintiff in the equitable action), having a good defense (which was fully set out), did not file it; that, in violation of the agreement, the plaintiff failed to withdraw the suit, and at the next term entered judgment by default; that defendant (plaintiff in the present action) did not know of the judgment until the execution was levied on her property, whereupon and immediately she instituted this action for injunction. The answer denied that any agreement had been made for withdrawal of the suit. At an interlocutory hearing the judge on conflicting evidence refused a temporary injunction. Held:

1. The discretion of the judge in refusing the injunction will not be disturbed.

2. The case differs from Beverly v. Flesenthall, 142 Ga. 834 (83 S. E. 942), decided on demurrer, which did not involve any conflict of evidence. Jvidgment affirmed.

All the Justices concur.

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Bluebook (online)

152 S.E. 53, 170 Ga. 27, 1930 Ga. LEXIS 390, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gilstrap-v-palmour-hardware-co-ga-1930.

Opinion

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