Smith v. Bukofzer

178 S.E. 640, 180 Ga. 213, 1935 Ga. LEXIS 222

• Court: Supreme Court of Georgia
• Decided: February 12, 1935
• Docket: No. 10341
• Status: Published

Opinion

Russell, Chief Justice.

This case relates to the same land and the same debt dealt with in Smith v. Bukofzer, ante, 209. A nonresident holder of a promissory note secured by deed to land in this State, which contained a power of sale, advertised the land for sale under the power. The sale was resisted by the maker of the note, by a suit to enjoin exercise of the power of sale. While that suit was pending the payee of the note instituted in the city court of Atlanta a suit seeking a common-law judgment for the amount due on the note. The debtor then instituted the present proceeding, which is a suit in tort, alleging damages based on malicious exercise of the power of sale contained in the security deed, and seeking for injunction against prosecution of the case in the city court, and to have that case consolidated with the present case, in order that in equity she might set off the damages alleged to have arisen in tort. The judge sustained a general demurrer to the petition, and refused an injunction.

The allegations of the petition, considered in connection with the attached exhibits, fail to show that the plaintiff was damaged as alleged, and therefore fail to allege a cause of action for damages. In these circumstances there was no cause for consolidation or for grant of injunction to restrain tlie prosecution of the suit on the note in the city court.

Judgment affirmed.

All the Justices concur.