Wright et al. v. Wheatley et al.

Supreme Court of Georgia1953-09-14No. 18277

210 Ga. 35

Summary · law.co

Holding. The trial court's judgment dismissing the petition was affirmed because the petition failed to comply with the statutory requirement for positive verification of essential facts in requests for extraordinary equitable relief, even though proper service and notice had been accomplished.

Wright and others appealed a trial court decision that dismissed their petition for an injunction, receiver, and other equitable relief. The trial court sustained a defendant's demurrer based on improper verification of the petition. The Supreme Court addressed two issues: whether proper notice and service had been provided to the defendants, and whether the petition was adequately verified as required by Georgia law.

On the notice and service question, the court found no defect. The plaintiffs' counsel had submitted a verified affidavit showing that copies of the bill of exceptions had been personally served on some defendants and properly noticed to others who were out-of-state, in compliance with the applicable statutes. Regarding verification, however, the court found the petition deficient. Although the plaintiffs' attorney had submitted an affidavit supporting the petition, it failed to clearly distinguish which facts he knew personally, which were based on investigation, and which rested on information or belief. This lack of clarity meant the affidavit did not positively verify the essential factual allegations as Georgia law required for petitions seeking equitable relief.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether defendants received proper notice and service of the bill of exceptions
Whether an attorney's affidavit sufficiently verifies a petition for equitable relief when it does not distinguish between personal knowledge, investigation, information, and belief
The statutory requirements for verification of petitions seeking injunctions and other extraordinary equitable remedies

Procedural posture

The trial court sustained a defendant's demurrer and dismissed the plaintiffs' petition for injunction and other equitable relief, and the plaintiffs appealed.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Hawkins, Justice.

1. It appearing from the verified affidavit of counsel for the plaintiffs in error, timely made and attached to the bill of exceptions, that a copy of the bill of exceptions, the exhibits attached thereto, and the certificate of the trial judge thereon, was served personally upon the defendant in error residing in Turner County, and upon counsel for the defendants in error residing in Lowndes County and Sumter County, Georgia, and from the acknowledgment by such counsel of receipt of such copy within the time required by Code § 6-911, and it further appearing from the certificate of the clerk of the trial court that notice was given to the defendants in error who are nonresidents of the State of Georgia, and not represented by counsel, in accordance with the provisions of Code §§ 6-914 and 6-915 — the motion to dismiss the bill of exceptions on the ground that it affirmatively appears therefrom that the defendants in error were not served as required by law is without merit. Goodwin v. Kennedy, 99 Ga. 123 (24 S. E. 975); Lyons v. Winter, 129 Ga. 416 (3) (59 S. E. 270); Jordan v. Harber, 172 Ga. 139 (3) (157 S. E. 652); Bodenheimer v. Fulton National Bank of Atlanta, 205 Ga. 829 (55 S. E. 2d 357).

Argued July 13, 1953

Decided September 14, 1953.

Benjamin Zeesman, for plaintiffs in error.

Robert R. Forrester, R. D. Smith, Ft. B. Williams, J. Frank Meyers, contra.

2. Code § 81-110 requires that “Petitions for a restraining order, injunction, receiver, or other extraordinary equitable relief shall be verified positively by the petitioner or supported by other satisfactory proofs.” While this court has held that the defective verification of such petition by the plaintiff would “not as a matter of law demand its dismissal,” but that the petition might be retained in court and an injunction granted where “other satisfactory proofs are submitted,” (Bracewell v. Cook, 192 Ga. 678, 16 S. E. 2d 432), and that a petition positively verified by the attorney for the plaintiffs would be “supported by other satisfactory proofs” (Boston Mercantile Co. v. Ould-Carter Co., 123 Ga. 458, 51 S. E. 466; Kilgore v. Paschall, 202 Ga. 416, 419, 43 S. E. 2d 520)— where, as in this case, the petition for injunction, receiver, and other equitable relief contains many allegations upon “information and belief,” and is not positively verified by any of the petitioners, but the attorney for the petitioners undertakes to verify it by an affidavit that “You ... do swear . . . that the facts alleged in said petition are true, according to your investigation, knowledge, information and belief,” but fails to disclose which of the essential facts of the petition were and which were not within his knowledge, and which of the allegations are based only upon his information, or belief, or ivestigation, such affidavit fails to verify positively the essential facts alleged in the petition (Grizzel v. Grizzel, 188 Ga. 418 (2), 422, 3 S. E. 2d 649, and cases there cited), and the demurrer of the defendant, specifically pointing out the lack of proper verification of the petition, was properly sustained and the petition dismissed. Kilgore v. Paschall, 202 Ga. 416 (supra).

Judgment affirmed.

All the Justices concur, except Atkinson, PJ., not participating.