Randall v. Sims

Supreme Court of Georgia

Randall v. Sims

22 S.E.2d 505, 194 Ga. 756, 1942 Ga. LEXIS 654

CourtSupreme Court of Georgia

DecidedOctober 14, 1942

Docket14302.

StatusPublished

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This text of 22 S.E.2d 505 (Randall v. Sims) 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.

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Randall v. Sims, 22 S.E.2d 505, 194 Ga. 756, 1942 Ga. LEXIS 654 (Ga. 1942).

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Opinion

Grice, Justice.

1. It was not erroneous to strike, on motion, that part of tke defendant’s response which set up that previously the complainant on her own application had been appointed temporary administratrix of the estate of defendant’s intestate, and had paid certain debts of the estate, since the matters therein set up were immaterial. Under the allegations and prayers of the petition, the ruling in Hardeman v. Ellis, 162 Ga. 664 (4) (135 S. E. 195), is inapplicable.

2. “An injunction should not issue on mere apprehension.” Behr v. Macon, 194 Ga. 334 (21 S. E. 2d, 169). Even if it be assumed that the complainant was otherwise entitled thereto, it was erroneous (a) to overrule a demurrer to so much of the petition as prayed for an injunction; and (b) to grant a temporary injunction restraining the administratrix from attempting to eject the complainant from the property of the intestate, and from selling any of the real estate, or from procuring any order from the court of ordinary permitting her to do so, or from distributing any portion of said estate, since there is neither allegation nor proof that the defendant administratrix threatens or intends to do any of these things. Christokas v. West, 181 Ga. 513 (182 S. E. 895).

Judgment affirmed in part and reversed in part.

All the Justices concur, except Bewleti, J., not participating. *757 John Z. Gozari, for plaintiff. Ed ~Wohhuender, for defendant.

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Grice, Justice.

1. It was not erroneous to strike, on motion, that part of tke defendant’s response which set up that previously the complainant on her own application had been appointed temporary administratrix of the estate of defendant’s intestate, and had paid certain debts of the estate, since the matters therein set up were immaterial. Under the allegations and prayers of the petition, the ruling in Hardeman v. Ellis, 162 Ga. 664 (4) (135 S. E. 195), is inapplicable.

2. “An injunction should not issue on mere apprehension.” Behr v. Macon, 194 Ga. 334 (21 S. E. 2d, 169). Even if it be assumed that the complainant was otherwise entitled thereto, it was erroneous (a) to overrule a demurrer to so much of the petition as prayed for an injunction; and (b) to grant a temporary injunction restraining the administratrix from attempting to eject the complainant from the property of the intestate, and from selling any of the real estate, or from procuring any order from the court of ordinary permitting her to do so, or from distributing any portion of said estate, since there is neither allegation nor proof that the defendant administratrix threatens or intends to do any of these things. Christokas v. West, 181 Ga. 513 (182 S. E. 895).

Judgment affirmed in part and reversed in part.

All the Justices concur, except Bewleti, J., not participating. *757 John Z. Gozari, for plaintiff. Ed ~Wohhuender, for defendant.

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22 S.E.2d 505, 194 Ga. 756, 1942 Ga. LEXIS 654, Counsel Stack Legal Research, https://law.counselstack.com/opinion/randall-v-sims-ga-1942.

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