Mar-Pak Michigan, Inc. v. Pointer

173 S.E.2d 206, 226 Ga. 189, 1970 Ga. LEXIS 479

• Court: Supreme Court of Georgia
• Decided: February 5, 1970
• Docket: 25560
• Status: Published

Opinions

Franktjm, Justice.

“No temporary restraining order shall be granted without notice to the adverse party unless it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before notice can be served and a hearing had thereon. Every temporary restraining order granted without notice, shall be endorsed with the date and hour of issuance; . . . and shall expire by its terms within such time after entry, not to exceed 30 days, as the court fixes, unless the party against whom the order is directed consents that it may be extended for a longer period. In case a temporary restraining order is granted without notice, the motion for an interlocutory injunction shall be set down for hearing at the earliest possible time . . . ; and when the motion comes on for a hearing the party who obtained the temporary restraining order shall proceed with the application for an interlocutory injunction, and if he does not do so, the court shall dissolve the temporary restraining order.” Ga. L. 1967, pp. 226, 240 (Code Ann. § 81A-165 (b)). Where an applicant for a temporary restraining order fails to comply with the foregoing statute, the judge of the superior court is without authority to grant such an order without notice. Under the foregoing rule relating to the granting of temporary restraining orders without notice, where it appears, as in this case, that a judge of the Superior Court of DeKalb County had, pursuant to an unverified petition, brought by Pointer against Mar-Pak Michigan, Inc., unsupported by any affidavit showing facts authorizing such order, granted a temporary restraining order on October 11, 1968; and where no hearing on the application of the complaint therein for an interlocutory injunction was ever held, such temporary restraining order, if it was otherwise valid, expired by operation of law 30 days after its entry; and where thereafter the original papers in the same complaint were withdrawn from the files of the clerk of the court and presented to another judge of the court who, thereupon, issued without notice to the opposite party another restraining order exactly in the language of the first restraining order, except as to its date and the date the respondent was required to show cause, restraining the defendant and its attorney from prosecuting a case pending in another court, such latter restraining order, being unsupported by a verified complaint or affidavit showing that immediate and irreparable loss or damage would result to the applicant before notice could be served and a hearing had thereon, and not being endorsed with the hour of its issuance was utterly void, and the attorney for the defendant was not in contempt of court in refusing to abide by the restraint imposed by such order and in proceeding to prosecute the case pending in the Civil and Criminal Court of DeKalb County which proceeding was sought to be restrained by the terms of such void order. John Hancock Mut. Life Ins. Co. v. Baskin, 179 Ga. 86 (3) (175 SE 251); Connell v. Connell, 222 Ga. 765 (2) (152 SE2d 567). Accordingly, the trial court erred in sustaining the plaintiff’s motion for contempt against the defendant and its attorney.

Argued December 9, 1969 Decided February 5, 1970 Rehearing denied March 5, 1970. Ileyman & Sizemore, Lamar W. Sizemore, W. Dan Greer, Hardeman Blackshear, Davis & Stringer, Thomas O. Davis, Powell, Goldstein, Frazer & Murphy, Edward E. Dorsey, King & Spalding, Charles H. Kirbo, Martin H. Peabody, for appellants. Glenville Haldi, for appellee.

Judgment reversed.

All the Justices concur.