2020 Georgia Code
Title 9 - Civil Practice
Chapter 5 - Injunctions
§ 9-5-3. When Court Proceedings Enjoined; Injunctions Against Sheriffs' Sales
- Equity will not enjoin the proceedings and processes of a court of law, absent some intervening equity or other proper defense of which a party, without fault on his part, cannot avail himself at law.
- Writs of injunction may be issued by judges of the superior courts to enjoin sales by sheriffs, at any time before a sale takes place, in any proper case made by application for injunction.
(Orig. Code 1863, § 3140; Code 1868, § 3152; Code 1873, § 3218; Ga. L. 1878-79, p. 139, § 1; Code 1882, § 3218; Civil Code 1895, § 4915; Civil Code 1910, § 5492; Code 1933, § 55-103.)
Cross references.- Venue for actions for injunction to stay judicial proceedings, § 9-10-30.
Law reviews.- For comment, "Antenuptial Agreements and Divorce in Georgia: Scherer v. Scherer," see 17 Ga. L. Rev. 231 (1982).
JUDICIAL DECISIONS
Principle upon which equity interferes and grants relief is to suppress useless litigation, to prevent multiplicity of suits, to restrain oppressive litigation and to prevent irreparable mischief. Allstate Ins. Co. v. Hill, 218 Ga. 430, 128 S.E.2d 321 (1962).
Injunction does not lie where complaining party has plain and adequate remedy at law which is as practical and efficient to the ends of justice and its prompt administration as the remedy in equity. Thomason v. Harper Motor Lines, 225 Ga. 312, 168 S.E.2d 147 (1969).
Where all relief sought can be obtained in the manner provided for by law, it is error for equity to intervene. Thomason v. Harper Motor Lines, 225 Ga. 312, 168 S.E.2d 147 (1969).
There is no ground for equity's jurisdiction if court at law has full power to grant party all relief to which the party is entitled. Morton v. Gardner, 242 Ga. 852, 252 S.E.2d 413 (1979).
When, after the holders of an alleged easement filed an action in probate court for removal of an obstruction to the easement, the owners of the alleged servient estate filed an action in superior court for a declaratory judgment, it was error, under O.C.G.A. § 9-5-3(a), for the superior court to consolidate the probate action with the superior court action as, although the probate court could not grant the temporary restraining order the owners sought, they were not entitled to it because they did not give proper notice, and the probate court had jurisdiction to decide the issue of the easement. Morris v. Mullis, 264 Ga. App. 428, 590 S.E.2d 823 (2003).
Equity will not enjoin actions at law on grounds which would constitute good legal defense to such action. Printup v. Mitchell, 17 Ga. 558 (1855).
Injunction not granted merely because legal defense appears adequate to defeat plaintiff.
- Where there is a good legal defense, the suit will not be enjoined merely because it appears that if the same facts are proved on the trial, the plaintiff could not recover. Mallory Bros. & Co. v. Cowart, 90 Ga. 600, 16 S.E. 658 (1892).
It is not necessary that equity intervene to hear and determine issues of laches, estoppel, and unjust enrichment, when it is plain that they can be asserted at law. Crowe v. State Hwy. Dep't, 216 Ga. 464, 117 S.E.2d 158 (1960).
Equity will not enjoin legal proceeding upon ground that court is without jurisdiction. Hood v. Hood, 132 Ga. 778, 64 S.E. 1074 (1909).
Since no legal judgment can be rendered upon suit proceeding without service, equity will not enjoin it. Etowah Mfg. & Mining Co. v. Dobbins & Co., 68 Ga. 823 (1882).
Equity will grant relief against action at law only to prevent injury to complaining party. Etowah Mfg. & Mining Co. v. Dobbins & Co., 68 Ga. 823 (1882).
It was not error for superior court to grant temporary injunction where necessary party was not party to suit at law pending in city court and since such court, a court of law, was without authority to make the absent necessary party a party. Miles v. Wilson, 212 Ga. 60, 90 S.E.2d 568 (1955).
Action will not be restrained at instance of strangers to it. Smith v. Cuyler, 78 Ga. 654, 3 S.E. 406 (1887).
The general rule is that an action at law will not be enjoined at the instance of one not a party thereto, particularly where the judgment in the action will not preclude the rights of such person. Ferrell v. Wight, 187 Ga. 360, 200 S.E. 271 (1938).
Defendant in threatened foreclosure suit does not need equity to assert defense that the purchaser has been damaged by the failure of the seller to have an insurance policy on the business transferred to the purchaser. Norris v. Johnson, 209 Ga. 293, 71 S.E.2d 540 (1952).
Judge erred in enjoining city from levying and enforcing tax fi. fa. where action based on anticipated wrong in view of threats to levy the fi. fa. City of Atlanta v. King, 182 Ga. 276, 184 S.E. 807 (1936).
Where fi. fa. issued by city is levied on property for failure to pay license fee or tax, owner has plain legal remedy and the superior court should not entertain a petition for injunction to restrain enforcement of the fi. fa., as equity will not enjoin the processes of a court of law, unless the defendant cannot avail defendant's interest at law. City of Nashville v. Lanier Motor Co., 183 Ga. 742, 189 S.E. 532 (1937).
No injunction against law action on petition for accounting where accounting available at law.
- Where it appears from a petition praying for an accounting that there was pending in another court a suit by the corporate defendant against the plaintiff, such court being empowered to render an accounting between the parties, and no special reason being set out why a court of equity should assume jurisdiction for such purpose, equity will not enjoin the proceedings and processes of a court of law in the absence of some intervening equity or other proper defense of which the party, without fault on the party's part, cannot avail at law. Peeples v. Peeples, 193 Ga. 358, 18 S.E.2d 629 (1942).
No injunction where plaintiffs could assert cross-action in partition proceeding.
- Since plaintiffs could by answer and cross-action assert their claims for legal and equitable relief in pending statutory partition proceeding, the petition alleged no sufficient reason why the defendants' partition proceeding at law should be enjoined. Cashin v. Markwalter, 208 Ga. 444, 67 S.E.2d 226 (1951).
No injunction where subtenant may retain possession of premises pending trial of legal issue.
- Where if an issue is tried in a court of law, subtenants can stay in possession by the filing of a counter affidavit and giving of a bond, the lessee and the lessee's subtenants are thus adequately protected in a proceeding at law, and there is no cause for enjoining that proceeding. Ehrlich v. Teague, 209 Ga. 164, 71 S.E.2d 232 (1952).
Institution of separate action where party could be joined in pending action.
- Subcontractor, sued by general contractor for breach of contract for construction of house, was unable to justify bringing subsequent action in another county raising the same issues and joining owner of house as party defendant, as the subcontractor could not demonstrate inadequacy of legal proceedings in initial action absent an attempt to join owner of house in that action. Troop Constr. Corp. v. Davis, 249 Ga. 830, 294 S.E.2d 503 (1982).
Superior court did not err in enjoining wife from prosecuting habeas corpus action before the ordinary (now probate judge) where the superior court acquired jurisdiction before the ordinary. Breeden v. Breeden, 202 Ga. 740, 44 S.E.2d 667 (1947).
Where defendant could not raise tort counterclaim because of lack of jurisdiction it was error to refuse to enjoin proceedings in the state court so that the issues presented by the facts could be tried together. Norment v. Wofford, 246 Ga. 281, 271 S.E.2d 214 (1980).
Unsalableness of property due to temporary depression of market values will not afford ground for injunction restraining sheriff's sale of property levied upon under an execution based on a judgment of foreclosure of a security deed, although it is alleged that certain public improvements are being made that will enhance the value of some of the property, and that there is a reasonable prospect that the depression will end in a short time, when the property may be sold for more than sufficient to pay the debt and leave a substantial balance to the debtor. Kontz v. Citizens & S. Nat'l Bank, 181 Ga. 70, 181 S.E. 764 (1935).
Stay appropriate.
- Where a former employer asserted claims identical to ones that were compulsory counterclaims in earlier suits, the trial court erred in denying a plea in abatement to all but one of the former employees pursuant to O.C.G.A. §§ 9-2-5 and9-2-44; the trial court did not abuse its O.C.G.A. § 9-5-8 discretion in staying two prior cases pursuant to O.C.G.A. §§ 9-5-1 and9-5-3. Smith v. Tronitec, Inc., 277 Ga. 210, 586 S.E.2d 661 (2003).
Cited in Roberson v. Roberson, 165 Ga. 447, 141 S.E. 306 (1928); Skinner v. Stewart Plumbing Co., 166 Ga. 800, 144 S.E. 261 (1928); Four Wheel Drive Auto Co. v. Ballard, 169 Ga. 166, 149 S.E. 905 (1929); American Sur. Co. v. Sealey, 173 Ga. 754, 161 S.E. 253 (1931); Clower v. Bryan, 175 Ga. 790, 166 S.E. 194 (1932); First Nat'l Bank v. Roberts, 175 Ga. 810, 166 S.E. 211 (1932); Mack v. American Sec. Co., 180 Ga. 629, 180 S.E. 127 (1935); Botatoles v. Hill, 180 Ga. 739, 180 S.E. 491 (1935); Bibb County v. Mortgage Bond Co., 183 Ga. 402, 188 S.E. 698 (1936); Neely v. Sheppard, 185 Ga. 771, 196 S.E. 452 (1938); Ferrell v. Wight, 187 Ga. 360, 200 S.E. 271 (1938); Otis v. Graham Paper Co., 188 Ga. 778, 4 S.E.2d 824 (1939); Walker Elec. Co. v. Walton, 203 Ga. 246, 46 S.E.2d 184 (1948); Kanes v. Koutras, 203 Ga. 570, 47 S.E.2d 558 (1948); Peavy v. General Sec. Corp., 208 Ga. 82, 65 S.E.2d 149 (1951); Dowling v. Pound, 214 Ga. 298, 104 S.E.2d 465 (1958); Crowe v. State Hwy. Dep't, 216 Ga. 464, 117 S.E.2d 158 (1960); Williamson v. Cullom, 218 Ga. 740, 130 S.E.2d 715 (1963); Commonwealth United Corp. v. Rothberg, 221 Ga. 175, 143 S.E.2d 741 (1965); Greene v. Interstate Credit Corp., 228 Ga. 573, 186 S.E.2d 869 (1972); B & J Bonding Co. v. Bell, 232 Ga. 623, 208 S.E.2d 555 (1974); Brown v. Techdata Corp., 238 Ga. 622, 234 S.E.2d 787 (1977); Saul v. Vaughn & Co., 240 Ga. 301, 241 S.E.2d 180 (1977); National Enters., Inc. v. Davis, 145 Ga. App. 198, 243 S.E.2d 563 (1978); Ransom v. Waldrip, 152 Ga. App. 711, 263 S.E.2d 682 (1979).
RESEARCH REFERENCES
Am. Jur. 2d.
- 42 Am. Jur. 2d, Injunctions, § 185 et seq.
14 Am. Jur. Pleading and Practice Forms, Injunctions, § 4.
C.J.S.- 43A C.J.S., Injunctions, § 93 et seq.
ALR.
- Right to enjoin prosecution of civil action because of matters arising pendente lite, 3 A.L.R. 1026.
Injunction against bringing or prosecuting action in another state or country because of the danger that result would be different from that which would be reached in the jurisdiction whose law is the proper governing law as regards matters of substance, 69 A.L.R. 591.
Power of equity upon ground of avoiding multiplicity of suits to enjoin prosecution of independent actions at law against same defendant by different persons on contracts, 90 A.L.R. 554.
Right to enjoin an action in another state in respect of matters adjudicated in local action or proceeding, 91 A.L.R. 570.
Right to enjoin prosecution of action in court of limited jurisdiction because of counterrights or claims in behalf of defendant which are beyond such limited jurisdiction, 125 A.L.R. 337.
