Hapeville-Block Inc. v. Walker

50 S.E.2d 9, 204 Ga. 462, 1948 Ga. LEXIS 450

Opinion

Head, Justice.

The plaintiff in this case is clearly not seeking an injunction to restrain present acts. The actual relief sought is the performance of acts by the defendants, which it is alleged are necessary to preserve the plaintiff’s property from injury caused by excavations made by Shackleford prior to the time the defendants, Walker and Henderson, acquired title to their property.

The Code, § 55-110, provides: “An injunction may only restrain; it may not compel a party to perform an act. It may restrain until performance.” In construing this section of the Code, it has been held by this court that the trial court may grant an order, “the essential nature of which is to restrain, although in yielding obedience to the restraint the defendant may incidentally be compelled to perform some act.” Goodrich v. Ga. R. & Banking Co., 115 Ga. 340 (41 S. E. 659); Westbrook v. Comer, 197 Ga. 434 (6) (29 S. E. 2d, 574). Suclj. is not the relief sought here. The plaintiff seeks an order of the court to require the defendants to do some act to preserve the plaintiff’s property. Such an order, if granted, would be a mandatory injunction. Mandatory injunctions are prohibited by the laws of this State. Ga. Power Co. v. Rome, 172 Ga. 15 (8) (157 S. E. 283); Braswell v. Palmer, 191 Ga. 263 (4) (11 S. E. 2d, 889).

If the petition could be construed as seeking an injunction against the excavation complained of, it comes too late, since an “injunction will not be granted to restrain acts already completed.” Shurley v. Black, 156 Ga. 684 (119 S. E. 618). See also Ga. Pacific Ry. v. Douglasville, 75 Ga. 828; Simmons v. Lindsay, 144 Ga. 848 (88 S. E. 199); Reid v. McRae, 190 Ga. 332 (9 S. E. 2d, 176).

The court did not err in sustaining the general demurrer to-the petition.

Judgment affirmed.

All the Justices concur, except Bell, J.,. absent on account of illness.