Blizzard v. Nosworthy

Trippe, Judge. 1. There is no good legal reason why a complainant may not, after a refusal of an injunction by the Chancellor, make a second application, especially when he presents new and additional matter discovered since the former hearing. By analogy to the rule for granting new trials for newly discovered testimony, it would be but reasonable that a Chancellor could thus rehear a second application for injunction. A second injunction maybe granted in the discretion of the Judge: New Code, 3223. 2. We presume, from the argument of counsel in this case, that complainant feared that unless an injunction could be obtained and a decree had, no attack could be made on the deed of the administratrix to Blizzard, from the fact that it had been produced on a former trial of the ejectment cause, inspected by the plaintiff, and used in evidence at that trial. This apprehension arises from a mistaken construction of the decision in Wooten vs. Nall, 18 Georgia, 609. The rule there stated is, that if a party calls for papers from the other side, and they are produced and inspected, they are then admissible as evidence for both parties, and on all subsequent trials. But neither that decision or any of the authorities cited, declare such papers conclusive evidence of the truth of what they contain, nor that the fact of their production and inspection precludes inquiry as to their validity. A notice [521] to produce a deed is often given for the purpose of proving it a forgery. All papers so produced and inspected by the party calling for them, are admissible in evidence without further proof as to execution, and for what they may be worth to the party introducing them, without any disability incurred by the one giving the notice, so as to prevent him from attacking them for fraud, or other cause, that may avoid them. They may thus become evidence, but not unimpeachable, conclusive evidence. 3. We do not think there was any abuse of discretion by the Judge in hearing the second application and granting the injunction, provided it be construed as restraining the trial of the ejectment cause, until a final hearing of the bill, with the right to the parties to a trial of both cases together. It would be highly unjust to the defendant in ejectment to deny him, by injunction, the right to use his deed, his only defense, perhaps, and still force him to trial. The difficulty seems to grow out of the form of the prayer, to-wit: it does not ask that the proceedings at law shall be stayed, but only that the defendant shall not use his deed on the trial thereof; and the order of the Chancellor is a grant of the prayer for injunction. We have no idea that the Judge intended that the action at law should be allowed to be forced to trial by complainant with the hands of defendant tied, so that his chief muniment of title could not be used by him. It was stated by counsel, in the argument, that a continuance of the ejectment case had been allowed, on account of the injunction. But as there seemed to be some apprehension on this point, and as the question was distinctly made, we have given the case such direction that no harm of that sort can result from the injunction. Judgment affirmed.