Opinion
22042.
ARGUED MAY 14, 1963.
DECIDED MAY 29, 1963.
Refusal of injunction. DeKalb Superior Court. Before Judge Guess.
Walter E. Baker, Jr., W. Harvey Armistead, for plaintiff in error.
Edward D. Wheeler, Herbert O. Edwards, L. Jack Swertfeger, Jr., George P. Dillard, Robert E. Mozley, contra.
The trial judge did not abuse his discretion in denying the plaintiff's prayer for temporary injunction.
ARGUED MAY 14, 1963 — DECIDED MAY 29, 1963.
For determination is the question of whether or not the trial judge abused his discretion in denying a temporary injunction.
The original petition prayed that the Commissioners of Roads and Revenues of DeKalb County, be temporarily and permanently enjoined from confirming a sale of real property to Blake Perry and conveying the property to him, he being the highest bidder at a public sale of the property, and that the sale be declared null and void on the ground that the parties had conspired and schemed to chill the bidding at the sale by advertising the property for sale subject to a materialman's lien in the amount of $3,000 when no such lien, or any valid lien, existed against the property.
Plaintiff amended his petition by alleging that the defendant commissioners confirmed the sale to Blake Perry Realty Company, Inc., on December 27, 1962, and executed a deed to the property dated December 4, 1962, which deed was recorded on January 7, 1963. The amendment added the prayer that Blake Perry and Blake Perry Realty Company be restrained and temporarily enjoined from in any way changing the present status of the property involved.
The evidence upon the hearing showed that the property in question is a house and lot; that Blake Perry thought he had purchased it from DeKalb County but the deed from the county to him did not describe the property, describing other property instead; that before discovering the erroneous description in the deed Blake Perry had incurred approximately $700 in expenses for the painting and repair of the house; that after discovering the aforesaid, Blake Perry and Blake Perry Realty Company reconveyed to DeKalb County for the purchase price of $6,500 and the county thereafter offered the property for sale at public outcry, selling it to Blake Perry Realty Company for $7,000; that the deeds from Blake Perry and Blake Perry Realty Company to DeKalb County and from DeKalb County to Blake Perry Realty Company were subject to a materialman's lien of $3,000.
Since plaintiff's petition as amended shows that the defendant commissioners had confirmed the sale and deeded the property to defendant Blake Perry Realty Company, the only prayer for temporary injunction that was before the trial court on the hearing was to temporarily enjoin Blake Perry Realty Company and Blake Perry from in any way changing the present status of the property pending the final outcome of the suit. Thus the question is did the trial judge abuse his discretion in denying a temporary injunction restraining defendants Blake Perry Realty Company and Blake Perry from changing the present status of the property until the issue of whether the sale was null and void is decided?
"The granting and continuing of injunctions shall always rest in the sound discretion of the judge, according to the circumstances of each case. The power shall be prudently and cautiously exercised, and except in clear and urgent cases should not be resorted to." Code § 55-108. The trial judge did not abuse his discretion in denying the temporary injunction. There is no evidence that Blake Perry Realty Company plans to change the status quo of the property nor does the petition state what is meant by "status of the property." If plaintiff had reference to mortgaging or conveying the property, the pending suit seeking to declare plaintiff's deed null and void would be general notice to all the world, provided notice of the pending suit was filed on the lis pendens docket in the office of the clerk of the superior court where the land lies, Code Ann. § 67-2801, and one who purchased the property pending the suit would be affected by the decree rendered therein. Code § 37-117. Thus plaintiff was protected against conveyance of the property; and, in the absence of any evidence of any proposed change in the status of the property, there clearly was no abuse of discretion by the trial court in denying the temporary injunction. Brooks v. Carter, 216 Ga. 836, 837 (1) ( 120 S.E.2d 332).
Judgment affirmed. All the Justices concur.