Saffold v. Evans

Gilbert, J. A judgment was rendered in the superior court of Chatham county against Saifold and Larsen. A fi. fa. issued thereon, and was levied. The defendants filed an equitable petition to enjoin the levy, [181] because of certain irregularities pertaining to the rendition of the judgment. On the interlocutory hearing an amendment was allowed by which the plaintiffs alleged that the levy was excessive, asked for a set-off of an amount which one of the defendants claimed against the plaintiffs, and set up that a portion of the land levied upon had been released by the plaintiffs. The defendants pleaded, that the matters of attack upon the validity of the judgment had been passed upon, and were res adjudieata; that the plaintiffs in a previous petition had sought to enjoin the levy on substantially the same ground as alleged in the present petition; and that the injunction had been refused, and this judgment had been affirmed by the Supreme Court. The court refused an injunction, and the plaintiffs excepted. Held: November 17, 1916. Petition for injunction. Before Judge Hardeman. Emanuel superior court. February 23, 1916. C. C. Crockett and A. W. Jordan, for plaintiffs. Travis & Travis, for defendants. 1. There was no error in refusing an injunction on the ground of release, because the release was upon condition, and it did not appear that the condition had been complied with. 2. While in an appropriate case an indebtedness on open account may be set off against a judgment when the holder of such judgment is insolvent, in the present ease there was no abuse of discretion in refusing an injunction, because the amount of the alleged equitable set-off was less than the amount of the judgment, and there was no tender of the difference. 3. There was no abuse of discretion in refusing an interlocutory injunction. Judgment. affirmed. All the Justices concur.