Phillips v. Davis

61 Ga. 159

• Court: Supreme Court of Georgia
• Decided: September 27, 1878
• Status: Published

Opinion

Jackson, Justice.

If there be any doubt about the judgment in this case, it .is ujxon the question whether an injunction should have been granted at all. Judgment had been obtained upon a mortgage of realty; it was regularly foreclosed; and the fi.fa. was levied some time after the foreclosure. Possibly there was equity in the bill, but it was sworn off by the answer. Equity will hesitate before enjoining a judgment at all, and the cases in which it is ever done are well defined. Kerr on Injunctions, chap. 3.

The terms are always in the discretion of the chancellor. Kerr, pp. 18-19.

Sometimes the chancellor, in a case like this, will require the money to be actually paid in court by the complainant before an injunction shall be directed in his favor. Kerr, p. 20.

The evidence before the chancellor in this case was conflicting, and he required the defendant in equity to secure the complainant, before he would permit the mortgage fi.fa. to proceed ; and to that end to give bond with good security to indemnify complainant, if complainant recovered on the hearing; if defendant did this, then he could go on with the collection of the judgment of foreclosure and prosecute his levy, otherwise he was enjoined. Surely the defendant in fi.fa., who is the complainant in equity, and who sought the injunction, could ask no more, and if the chancellor erred at all, it was in his favor.

The chancellor in our judgment, as he granted the injunction, was right to modify his order by allowing th&fi.f co-to proceed whenever Davis, the mortgage creditor, gave the bond and security.

Judgment affirmed.