Opinion
22088, 22089.
ARGUED JULY 8, 1963.
DECIDED OCTOBER 10, 1963.
Injunction. Wayne Superior Court. Before Judge Flexer.
W. Glenn Thomas, Albert E. Butler, for plaintiff in error.
Ronald F. Adams, contra.
1. The trial court erred in overruling the general demurrers of the defendant. "The office of an injunction being, under the code of this State, merely to restrain and not to compel the performance of an act, this remedy is not available for the purpose of evicting a party from the actual possession of land, the right to which is in dispute between himself and another; and consequently such a result can not be indirectly accomplished by an order restraining the party so in possession `from further interfering with said lot of land, house and crop' thereon. Such an order, being mandatory in its nature, would afford relief not within the proper scope of the writ of injunction." Vaughn v. Yawn, 103 Ga. 557 ( 29 S.E. 759); Paschal v. Tillman, 105 Ga. 494 ( 30 S.E. 870); Beacham v. Wrightsville Tennilee R. Co., 125 Ga. 362 ( 54 S.E. 157); Glover v. Newsome, 134 Ga. 375 ( 67 S.E. 935); Burns v. Hale, 162 Ga. 336 ( 133 S.E. 857); Beck v. Kah, 163 Ga. 365 ( 136 S.E. 160); American Oil Co. v. Hulme, 180 Ga. 768 ( 180 S.E. 768); Braswell v. Palmer, 191 Ga. 262 (4) ( 11 S.E.2d 889); Fender v. Hendley, 195 Ga. 498 ( 24 S.E.2d 654); Smith v. Glenn, 211 Ga. 868 ( 89 S.E.2d 515). The bare allegation that the defendant's possession of the property was damaging the plaintiff "to the extent of $100.00 for each and every day defendant remains in possession" is wholly insufficient to allege a cause of action for damages. The subsequent verdict and judgment, ousting the defendant and placing the plaintiff "into immediate peaceable and exclusive possession" of the property, is null, void, and wholly without any valid legal effect.
2. Where a cross bill seeks relief germane to the original petition, the dismissal of the petition on demurrer will not result in the dismissal of the cross action. Ray v. Home Foreign Investment c. Co., 106 Ga. 492 ( 32 S.E. 603); Lacher v. Manley, 139 Ga. 802 ( 78 S.E. 188); Troup v. Martin, 158 Ga. 178 ( 122 S.E. 611); Harry L. Winter, Inc. v. Peoples Bank of Calhoun, 166 Ga. 385, 391 ( 143 S.E. 387); Hudgins Contracting Co. v. Redmond Co., 176 Ga. 90 ( 166 S.E. 865); Moore v. Atlanta Joint Stock Land Bank, 176 Ga. 697 (7) ( 168 S.E. 558); Byrd v. Equitable Life Assurance Society, 185 Ga. 628, 637 ( 196 S.E. 63).
3. The defendant's answer and cross bill, as amended, admit execution and delivery of the deed under which the plaintiff claims, but it is contended that a substantial part of the consideration was never paid. Both legal and equitable relief is sought because of this nonpayment, neither of which is germane to the injunctive relief sought by the plaintiff. "Where the relief sought by the cross petition is not germane to the main action, the dismissal of the main action carries the cross action with it." Collier v. DeJarnette Supply Co., 194 Ga. 129, 131 ( 20 S.E.2d 925). In the present case the dismissal of the petition carries with it the answer and cross bill of the defendant. It is therefore unnecessary to rule upon the general and special demurrers of the plaintiff to the answer and cross action.
4. The plaintiff not being entitled to possession of the premises under the void verdict and judgment in his favor, he was not harmed by the order denying his motion to terminate the receivership.
Judgment on the main bill of exceptions reversed; cross bill of exceptions affirmed. All the Justices concur.
ARGUED JULY 8, 1963 — DECIDED OCTOBER 10, 1963.
C. W. Harvey filed a petition against T. B. Horton alleging that prior to July 5, 1961, the defendant was the owner and in possession of a large dairy farm with valuable dairy cattle thereon, as described in a warranty deed from the defendant to the plaintiff, copy of which is attached as Exhibit "A" and made a part of the petition; the defendant refuses to relinquish possession of the lands and cattle, although the plaintiff has made demands upon the defendant for immediate possession thereof.
The prayers of the petition were: "(a) That process issue requiring the defendant to be and appear at the next term of court to answer this complaint; (b) That a copy of this petition and the order thereon be served upon the defendant as soon as he can be found and that the defendant be required to file his answer on or before the ____ day of _________, 1961. (c) That until further order of the court, the defendant be restrained and enjoined from committing the aforesaid acts of trespass; (d) That upon the final determination of the case, the defendant be permanently enjoined and restrained from committing the acts of trespass herein complained of; (e) That petitioner have a money judgment for the number of days defendant remains on petitioner's property at the rate of $100.00 per day from and after July 5, 1961; (f) That petitioner have such other and further relief as may be equitable and just."
The judge issued an order requiring the defendant to show cause on July 22, 1961, why he should not be temporarily restrained "from doing the aforesaid acts until the final determination of said case." On July 20, 1961, the defendant moved the court to quash the process because of the defective prayer for process. On the same date the defendant, without waiving requisite legal process, filed his general and special demurrers to the petition. On July 21, 1961, the petition was amended by striking the original prayer for process and substituting in lieu thereof the following prayer: "That process issue requiring the defendant to answer said complaint within thirty days after service upon him has been perfected." This amendment was allowed on the same date, subject to demurrer.
The defendant's renewed amended motion to quash was overruled. The defendant's general demurrers were overruled and some of his special demurrers. The trial resulted in a verdict and judgment for the plaintiff. The defendant's motion for a new trial, as amended, was denied. By bill of exceptions the defendant assigns error on the ruling on the motion to quash, the rulings on his demurrers, and the denial of his motion for new trial as amended. By cross bill of exceptions the plaintiff assigns error on the overruling of his general and special demurrers to the answer and cross bill of the defendant and on the denial of his motion to revoke receivership of the property in litigation.