Opinion
18783.
ARGUED NOVEMBER 8, 1954.
DECIDED JANUARY 10, 1955.
Injunction. Before Judge Frankum. Stephens Superior Court. August 31, 1954.
Gross Smith, for plaintiff in error.
McClure Ramsay, George L. Goode, contra.
The trial court did not err in refusing to grant an interlocutory injunction.
ARGUED NOVEMBER 8, 1954 — DECIDED JANUARY 10, 1955.
Edward Shockley brought a petition against Lonnie Garner, in which he alleged: The petitioner is in the rightful possession of described land, including all buildings located thereon, under a lease contract between Mrs. J. W. Marks, owner of the land, and I. L. Farmer, and a sublease of the land and buildings thereon from I. L. Farmer to the petitioner. There is located on the land a described building. On May 20, 1954, the defendant went into the land and began tearing down the building. The petitioner instructed the defendant that he had leased the land and buildings, and that the defendant should stop tearing down the building. The defendant disregarded the petitioner's instructions and is now in the process of tearing down and removing the building. It is of the value of $1,500. The defendant is insolvent, and if he is permitted to tear down and remove the building, the petitioner will suffer irreparable loss.
The prayers of the petition were: for process; that the defendant be temporarily and permanently restrained from tearing down and removing the building; that the petitioner recover of the defendant $1,000 as damages; and for other relief. A temporary restraining order was issued.
Lonnie Garner, in his answer, alleged that he had purchased the building referred to in the petition from Mrs. J. W. Marks, and he desired possession pursuant to the terms of his purchase. He prayed that Mrs. Marks be made a party defendant in the proceeding, and that she defend the title of the property purchased by him from her.
In response to the rule nisi served upon her, Mrs. Marks agreed that she be made a party defendant in the case. In her verified answer she alleged that she was solvent; and that the lease contract which she entered into with I. L. Farmer had terminated by his failure to pay rents due, and she had exercised her option to cancel the contract by written notice, in accordance with its terms.
The evidence on the interlocutory hearing was in regard to the payments of rent and the cancellation of the lease. The trial judge dissolved the temporary restraining order and refused to grant an interlocutory injunction. The exception is to that judgment.
The only allegations in the petition which might give a court of equity jurisdiction to grant an injunction were that the defendant was insolvent, and that the petitioner would be irreparably injured. No evidence was produced at the interlocutory hearing to support either allegation.
"On the question of irreparable damage in a suit for injunction to prevent trespass upon realty, the sworn allegations of the petition may be considered as evidence at the interlocutory hearing." Atlantic Coast Line R. Co. v. Gunn, 185 Ga. 108, 111 ( 194 S.E. 365). The allegation of irreparable injury in the present petition was a mere conclusion, since no facts were alleged to show irreparable injury. Washington Seminary v. Bass. 192 Ga. 808, 816 ( 16 S.E.2d 565). Such conclusion in the petition would be insufficient, standing alone, to authorize the trial judge to grant an interlocutory injunction.
An allegation that the defendant is insolvent is an assertion of an ultimate fact, and not a legal conclusion. Schneider v. Smith, 189 Ga. 704, 706 (5) ( 7 S.E.2d 76). Mrs. Marks, who was made a party defendant in the action, in her verified answer, asserted that she was the owner of the property, had sold the building to the defendant Garner, and that she was solvent. Since any damages which the petitioner might ultimately recover would be against the owner of the property who had sold the building, the trial judge did not abuse his discretion in deciding the issue of insolvency, made alone by the pleadings, in favor of the defendants.
The trial court did not err in refusing to grant an interlocutory injunction. Code § 55-104; Putney v. Bright, 106 Ga. 199 ( 32 S.E. 107); Huguley v. Holmes, 127 Ga. 202 ( 56 S.E. 298).
Judgment affirmed. All the Justices concur.