Stewart & Brother v. Davis-Sears Lumber Co.

Holden, J. Where, on the interlocutory hearing of an equitable petition to enjoin the cutting of timber to which the plaintiffs claimed title, the order of the court provided “that the application for temporary injunction be and the same is denied, and further that the temporary restraining [order] granted on the 27th day of Eeb., 1908, be and the same is hereby revoked. Provided, however, that defendants give bond in the sum of seven hundred and fifty dollars, conditioned to pay the plaintiffs any damages they may sustain by reason of the cutting of the said timber, in the event the plaintiffs shall finally recover in said cause. Said bond to be approved by the clerk of Coffee Superior Court;” held: (а) A proper construction of such order is that the interlocutory injunction was granted unless the defendants gave the bond specified. (б) Where the sole ground upon which injunction was sought was that the cutting of the timber was constantly recurring and defendants threatened from day to day to cut the timber until it was all cut and removed, and injunction was asked only because of its necessity in order to avoid a multiplicity of suits for damages for such alleged trespasses; and where the evidence was sufficient to authorize the conclusion that such cutting was being done and -threats made as alleged, and there was no allegation or proof as to the financial condition of defendants, the court must have decided that the plaintiffs were entitled to an injunction and granted the same on the ground that it was necessary to avoid such multiplicity of suits. (c) As the court decided that the plaintiffs were entitled to an injunction in order to avoid such multiplicity of suits, it was error to grant it upon condition of the failure of the defendants to give the bond required; as the giving of such bond would not avoid the necessity for such multiplicity of suits. Hart v. Lewis, 126 Ga. 439 (55 S. E. 189); Stoner v. Patten, 124 Ga. 754 (52 S. E. 894); Wethington v. Baxter, 124 Ga. 1024 (53 S. E. 505). ' Judgment reversed. All the Justices concur, except Fish, O. J., and Lump-hm, J., dissenting.