Jenkins Bros. v. Carmen

37 S.E. 719, 112 Ga. 476, 1900 Ga. LEXIS 209

• Court: Supreme Court of Georgia
• Decided: December 20, 1900
• Status: Published

Opinion

Fish, J.

1. An equitable petition to enjoin the cutting of timber is not maintainable under the provisions of section 4927 of the Civil Code, when the plaintiff’s claim of “perfect title ” depends upon' an allegation that he and the defendant hold under a common grantor, as the truth of such an allega^ tion can not, in the nature of things, appear upon the face of the deeds or other instruments constituting the “original titles,” the existence of which must appear from the allegations of the petition and which the plaintiff must produce to the judge, but necessarily rests upon aliunde proof. A case of the nature here indicated falls within the principle laid down in Dixon v. Monroe, 112 Ga. 158, and authorities there cited.

2. Applying what is said above to the facts appearing in the record, the court erred in granting the injunction.

Judgment reversed.

All the Justices concurring.