Craig v. Cosby

Simmons, Justice. . George P. and Robert Craig filed their petition in the superior court of Gwinnett county, and prayed an order enjoining the sheriff from levying a certain fi. fa. described in this petition. Nearly every point in the petition was made in the affidavit of illegality which was brought to this court at the last term, the case being reported in 80 Ga. 709, under the name of Craig et al. vs. Herring & Turner, for use. These points were then decided adversely to these plaintiffs in error, and as to the present case are res adjudicata. As to the new points made in the petition, about the sheriff’s failing to file the bond, etc., they could have, been made in the affidavit of illegality. As they could have been made and were not made, it is too late to make them now in this proceeding. . As to the charges of fraud made in the petition against Brand and McCandless, the new parties, it is sufficient to say that they were denied by Brand and McCandless, and as to this point we will not control the discretion of the trial judge, who refused to grant the injunction. [653] Fora discussion and decision of all the material points made in this petition, see Craig vs. Herring, supra, and authorities there cited. Judgment affirmed.