At any stage in the progress of an action seeking equitable relief, if any portion of the same is ready for or requires a decree, the court may hear and determine such matters and pass such interlocutory decree or order as may advance the cause and expedite a final hearing. If no issue of fact is involved, the verdict of a jury shall be unnecessary.
(Orig. Code 1863, § 4111; Code 1868, § 4142; Code 1873, § 4201; Code 1882, § 4201; Civil Code 1895, § 4847; Civil Code 1910, § 5420; Code 1933, § 37-1101.)
Cross references.- Special verdicts in civil cases, § 9-11-49.
Law reviews.- For article, "Injunction Procedure in Georgia," see 13 Ga. B.J. 300 (1951). For article surveying development of equity and the right to trial by jury in equity actions in Georgia, and advocating use of jury to try issues of fact in equitable actions, see 8 Mercer L. Rev. 225 (1957). For survey article on trial practice and procedure, see 34 Mercer L. Rev. 299 (1982).
JUDICIAL DECISIONS
A decree may be partly final and partly interlocutory; final as to its determination of all issues of law and fact and interlocutory as to its mode of execution. Moody v. Muscogee Mfg. Co., 134 Ga. 721, 68 S.E. 604, 20 Ann. Cas. 301 (1910); Johnson v. James, 246 Ga. 680, 272 S.E.2d 692 (1980).
A final decree disposing of all the substantial equities of the case is not made interlocutory by reservation of the right to direct the mode of its execution. Moody v. Muscogee Mfg. Co., 134 Ga. 721, 68 S.E. 604, 20 Ann. Cas. 301 (1910); Johnson v. James, 246 Ga. 680, 272 S.E.2d 692 (1980).
Control of interlocutory decree.
- An interlocutory decree is under the control of the judge until the final hearing. Howard v. Lowell Mach. Co., 75 Ga. 325 (1885).
Reopening decree.
- An interlocutory decree fixing the plan of settlement to creditors, on a petition to wind up affairs of a building and loan association may be made with an order therein that it may be reopened for adjudication of rights and liabilities of subsequent parties. Goodrich v. City Loan & Bldg. Ass'n, 54 Ga. 98 (1875).
Judges' powers in this state are similar to those as were exercised in England. Jones v. Dougherty, 10 Ga. 273 (1851).
Correction of error in auditor's conclusion of law on facts as found is competent by decree. Wiley v. City of Sparta, 154 Ga. 1, 114 S.E. 45, 116 S.E. 116, 25 A.L.R. 1342 (1922).
Order violative of rights of creditors.
- The minor legatees under a will, who are not the children of the testator, have no right in a case pending in superior court upon a petition filed by the executor, for direction to an interlocutory order setting apart money for their support, when the solvency of the estate was denied. Williams v. Mobley, 38 Ga. 241 (1868).
Interlocutory judgment conflicting with prior order.
- Where the court enjoins the defendant from disposing of property except by the approval of court, at an interlocutory hearing to secure the appointment of a receiver and to impress a trust on said property, it is error for the court by a subsequent interlocutory judgment to order the defendant to deliver the property to plaintiff before an adjudication of the issue of the ownership of the property. James v. Park, 145 Ga. 356, 89 S.E. 416 (1916).
Apprehension of enforcement of municipal charter not ground for interlocutory injunction.
- Where action is filed in a superior court, seeking to enjoin the enforcement of a provision of a municipal charter on the ground that such provision is unconstitutional, and where it appears that no arrest has been made, no property levied upon, and no other interference with the person or the property rights of the petitioner, but that the petition is based upon a mere apprehension that such may be done by the municipality, it is proper to refuse an interlocutory injunction. Southern Oil Stores, Inc. v. City of Atlanta, 177 Ga. 602, 170 S.E. 801 (1933).
Decree of a court of equity must follow the verdict, and may not embrace questions which the verdict does not cover. Gray v. Junction City Mfg. Co., 195 Ga. 33, 22 S.E.2d 847 (1942).
Trial by jury in an equity case is generally a matter of right under the law of this state. It is true the right does not exist under the Constitution as common-law cases, but it is as clearly provided by statutes applicable generally to cases in equity. Holton v. Lankford, 189 Ga. 506, 6 S.E.2d 304 (1939).
No right to jury trial created.
- In view of the repeal of former Code 1933, § 37-1104 providing for jury trials of fact in equity cases, the last sentence of O.C.G.A. § 23-4-34 did not create, by negative implication, a right to trial by jury. Cawthon v. Douglas County, 248 Ga. 760, 286 S.E.2d 30 (1982).
It was error for the court to dismiss the plaintiffs' amended petition at an interlocutory hearing for temporary injunction, on the ground that the evidence was insufficient to authorize the grant of such preliminary relief. Because the allegations of the petition, as amended, if true, made a case entitling them to injunction, and whether an interlocutory injunction should or should not have been granted by the trial judge under the facts presented, the plaintiffs still had a right to have a hearing before a jury with a view of determining whether or not a permanent injunction should be granted. Jones v. Mauldin, 208 Ga. 14, 64 S.E.2d 452 (1951).
Cited in Bearden v. Longino, 183 Ga. 819, 190 S.E. 12 (1937); Manry v. Stephens, 190 Ga. 305, 9 S.E.2d 58 (1940); Gibson v. Gibson, 204 Ga. 437, 49 S.E.2d 877 (1948); Hartley v. Hartley, 211 Ga. 616, 87 S.E.2d 851 (1955); Shaw v. Miller, 215 Ga. 413, 110 S.E.2d 759 (1959); Jonesboro Inv. Trust Ass'n v. Donnelly, 141 Ga. App. 780, 234 S.E.2d 349 (1977).
RESEARCH REFERENCES
Am. Jur. 2d.
- 27 Am. Jur. 2d, Equity, § 240.
C.J.S.- 31 C.J.S., Equity, §§ 510, 580 et seq.
ALR.
- Divorce: right to enter final decree after time fixed by interlocutory decree expires, 1 A.L.R. 1591; 104 A.L.R. 654; 158 A.L.R. 1205.
Equity jurisdiction for cancellation of insurance policy upon ground within incontestable clause prior to termination of period, 73 A.L.R. 1529; 111 A.L.R. 1275.
Effect of failure of special verdict or special finding to include findings of all ultimate facts or issues, 76 A.L.R. 1137.
Effect of nonsuit, dismissal, or discontinuance of action on previous orders, 11 A.L.R.2d 1407.
Withdrawal of written special interrogatories or special questions submitted to jury, 91 A.L.R.2d 776.