Simms v. Phillips

Warner, Chief Justice. This was a bill filed by the complainants against the defendants, praying for an injunction to restrain the sale of certain described property which had been levied on as the property of Mrs. Jane E. Simms, on the ground that it was trust ¡iroperty and not liable to be sold in satisfaction of her debts, for the reasons alleged in complainants’ bill. On hearing the application for the injunction prayed for, the presiding judge granted it, restraining the sale of the property levied on, to the prejudice of whatever rights the complainants, Emily E. Simms, Sarah F. Simms and Jane E. Simms, minors, may [436] Lave in and to the same, and refused the injunction to restrain the sale of whatever interest Jane E. Simms, the adult complainant, may have in the property, whereupon both parties excepted. In considering the allegations in the complainants’ bill, and the affidavits in the record in support thereof, we find no error which will authorize this court to interfere with the discretion exercised by the presiding judge in granting the injunction as to the rights of the minor cestui que trusts in the property. But inasmuch as no specified interest in the property was levied on by the sheriff as the property of Mrs. Simms, the defendant in execution, and the entire property being levied on as hers, it was error in the court in not restraining the sale as to her interest in the property until the final hearing of the cause, it not appearing from the levy of the sheriff what her interest in the property was, and could not be ascertained, according to the allegations in the bill, until the final trial was had. The objection is, that the levy of the sheriff does not describe what interest in the property he levied on as the property of Mrs. Simms, and there is nothing in the record which enables us to see what will be the extent of her interest in the property until the rights of the parties shall be finally adjudicated. The question involved in this branch of the case comes fully within the principle recognized and decided by this court in Whatly vs. Newsom, 10 Georgia Reports, 74; see Code, 3640. Let the judgment of the court below be affirmed granting the injunction, and reversed as to the refusal to grant it restraining the sale of Mrs. Simms’ interest in the property.