Carrington v. Citizens Bank , 140 Ga. 798 ( 1913 )

Evans, P. J.

(After stating the foregoing facts.) The ground of demurrer overruled by the court was directed to the materiality of the allegation that the second sale of the land occurred after the legal hours of sale. The effect of the court’s ruling was, that if the sale occurred after the time prescribed by law for sales, it was void; and he specially reserved that issue for trial on the merits of the case. The law requires that sales under a power of this kind, in the absence of a contrary contractual stipulation, shall take place on the first Tuesday of the month, and within the hours fixed in the advertisement. Garrett v. Crawford, 128 Ga. 519 (3), 523 (57 S. E. 792, 119 Am. St. R. 398, 11 Ann. Cas. 167). If the' sale occurred after sales hours, the sale would be void, and the purchaser would get no title.

Notwithstanding the court’s holding that the sale was void, he refused to enjoin the defendant as prayed. This refusal was evidently predicated upon the thoroughly settled principle that an injunction, in the absence of insolvency or other equitable cause, will not issue against a trespass neither threatened nor existing, but merely apprehended, where no facts are alleged to show that the apprehended injury would be irreparable in damages. If the sale be void, then the plaintiff is under no duty to surrender the premises to the purchaser thereat; and if she should refuse to give possession to the bank, it would be remitted to its appropriate action to obtain possession. There is not the slightest hint in the petition that the bank intends any illegality of conduct, or has done any specific act to dispossess the plaintiff or to interfere with her possession.

We were requested on the argument to deal with the case on the demurrer as if the judgment excepted to were a ruling on the demurrer. There are at least two reasons why this request can not be acceded to. The writ of error is to the refusal of an injunction. A judgment on demurrer is not reviewable, as such, by a fast bill of exceptions. While the court may consider a demurrer in granting or refusing an interlocutory injunction, the primary and controlling question in such case is the propriety and correctness of the grant or refusal of the injunction. And further, the interlocutory hearing was had before the appearance term, and the court could not finally dispose of the demurrer by a judgment rendered in advance of the appearance term of the cause. Inasmuch as the trial court specifically ruled, on the demurrer, in holding that he did not abuse his discretion in refusing to enjoin a merely apprehended trespass we direct that such ruling on demurrer be not considered as conclusive of the questions made by it, and that .when the case is heard on demurrer the issues raised thereby be heard and determined as if no former judgment had been rendered.

Judgment affirmed.

All the Justices concur.