Union Lumber Co. v. Allen

Lumpkin, P. J. 1. The law embraced in section 4927 of the Civil Code,as amended by the act of December 20, 1899 (Acts of 1899, p. 40), introduced into our system of equity practice a new feature as to granting injunctions restraining the'cutting of timber, or boxing or otherwise working the same for'turpentine purposes. Under this law, one who has a perfect title to land upon which timber is situated, or such title to timber upon any land, may obtain an injunction against a trespasser without- being required “to aver or prove his insolvency, or that the damages he is committing will be irreparable. It is, in the section cited, further provided that the judge, in granting the plaintiff’s prayer for injunction, shall require him to give a bond to answer such damages as may be sustained by the defendant “ by reason of the granting of said injunction.” It would therefore seem clear that when a petitioner, by allegation and proof, brings his case squarely within the provisions of this sec [348] tion, the judge must grant the injunction as prayed, and compel the plaintiff to give the bond required by the statute. In the present case the petitioners complied with the terms of the law, and the judge granted an injunction, but, instead of ordering the plaintiffs to give bond, qualified the grant of the injunction by directing that, if the defendants would file in the clerk’s office a bond conditioned to pay the eventual condemnation-money which the plaintiffs or any of them might recover against the defendants in the case, “the order for injunction be dissolved, so far as to allow the defendants to gather and use this year’s crop of turpentine from said land.” The plaintiffs excepted to so much of the decision “as allows defendants to continue to work said timber for turpentine purposes.” In our judgment the exception is good. The trial judge did not follow the statutory scheme, but substituted for it another not authorized by law. 2. It was insisted here that the judgment below should be sustained because the plaintiffs’ petition was not duly verified. This point is answered by section 4966 of the Civil Code, which provides that: “ Petitions for a restraining order, injunction, receiver, or other extraordinary equitable relief should be verified positively by the petitioner, or supported by other satisfactory proofs." See the cases cited thereunder. In any view, it was too late, after a hearing on the merits, to raise any question as to the verification of the petition. See also Bass v. Wolff, 88 Ga. 427. Judgment reversed. All the Justices concurring.