Scarbrough v. Cook

69 S.E.2d 201, 208 Ga. 697, 1952 Ga. LEXIS 323

Opinion

Head, Justice.

James F. Cook filed a petition against J. A. Scarbrough, as administrator de bonis non with the will annexed, of the estate of F. M. Scarbrough, deceased. In substance, the petition alleged that the defendant is advertising for sale certain described lands, pursuant to an order from the court of ordinary, and that the property as described includes 7.2 acres of the plaintiff’s land. The prayers of the petition were for temporary and permanent injunction to restrain the sale, and “for such other and further relief as to the court may seem necessary.” The defendant filed a general demurrer to the petition, which was overruled, and the exception is to that judgment. Held:

1. The allegations of the petition show that the provisions of the Code, §§ 113-1801, 113-1802, afford the plaintiff a full, complete, and adequate remedy at law by the filing of a claim in the court of ordinary. Hall v. Findley, 188 Ga. 487 (4 S. E. 2d, 211). See also Code, §§ 37-120, 55-101; Douglas v. Jenkins, 146 Ga. 341 (91 S. E. 49); James v. Upton, 160 Ga. 819 (129 S. E. 100); City of Winder v. Winder National Bank, 162 Ga. 354 (133 S. E. 920); Arrington v. Spear, 181 Ga. 419 (182 S. E. 521); Dunahoo v. Dunahoo, 181 Ga. 494 (182 S. E. 848); Kirk v. Bray, 181 Ga. 814 (184 S. E. 733); Williford v. Haverty Furniture Co., 183 Ga. 707 (189 S. E. 521); Matson v. Crowe, 193 Ga. 578 (2) (19 S. E. 2d, 288).

2. No equitable relief is sought other than the extraordinary relief of injunction, and there is no prayer for any legal relief. All the relief sought in the present action (which involves no more than a dispute as to the location of a land line) can be obtained in the manner provided by law. The court erred in overruling the general demurrer to the petition.

Judgment reversed.

All the Justices concur. Brackett & Brackett, B. B. Pullen, for plaintiffs in error. ■John H. Hudson, J. Walter LeCraw, contra.