Gilstrap v. Palmour Hardware Co.

Atkinson, J. An equitable action was instituted to enjoin enforcement of an execution issued from a court of law, on the ground that the judgment on which tlie execution was based had been obtained by fraud. It was alleged tha-t after the petition and process in the first suit had been served upon the defendants, one of them, in his own behalf and as agent for the other, entered into a valid agreement with tire plaintiff for withdrawal of that suit; that, relying upon such agreement, this other defendant (the plaintiff in the equitable action), having a good defense (which was fully set out), did not file it; that, in violation of the agreement, the plaintiff failed to withdraw the suit, and at the next term entered judgment by default; that defendant (plaintiff in the present action) did not know of the judgment until the execution was levied on her property, whereupon and immediately she instituted this action for injunction. The answer denied that any agreement had been made for withdrawal of the suit. At an interlocutory hearing the judge on conflicting evidence refused a temporary injunction. Held: 1. The discretion of the judge in refusing the injunction will not be disturbed. 2. The case differs from Beverly v. Flesenthall, 142 Ga. 834 (83 S. E. 942), decided on demurrer, which did not involve any conflict of evidence. Jvidgment affirmed. All the Justices concur.