Opinion
23011.
ARGUED JUNE 15, 1965.
DECIDED JULY 12, 1965.
Injunction. Fulton Superior Court. Before Judge Moore.
Hansell, Post, Brandon Dorsey, Charles E. Watkins, Jr., Hugh M. Dorsey, Jr., R. W. Crenshaw, Jr., for plaintiff in error.
George G. Finch, Powell, Goldstein, Frazer Murphy, B. D. Murphy, James N. Frazer, Harold Sheats, Walter W. Aycock, contra.
The present case falls within the general rule that an action at law will not be enjoined at the instance of one not a party thereto.
ARGUED JUNE 15, 1965 — DECIDED JULY 12, 1965.
This was a proceeding in equity by Commonwealth United Corporation against Samuel Rothberg, Forsyth Building Corporation, the Citizens Southern National Bank, and the Clerk of the Civil Court of Fulton County. The plaintiff sought to enjoin the prosecution of a suit filed in the Civil Court of Fulton County by Rothberg against Forsyth Building Corporation to recover principal, interest, and attorney's fees on a note and loan deed executed by Forsyth Building Corporation to New England Mutual Life Insurance Company and transferred by that company to the Citizens Southern National Bank, and by the bank to Rothberg.
The contentions of the plaintiff are that Rothberg is the controlling stockholder in Forsyth Building Corporation and that the suit filed is a collusive one and for that reason should not be maintained; that Rothberg could not in that suit claim attorney's fees without giving notice to the plaintiff as the alleged fee owner of the property described in the security deed; that the indebtedness was not in default at the time Rothberg exercised the option to declare the entire indebtedness immediately due and collectible because there had been a departure from the terms of the contract such as to require notice under Code § 20-116; that the notice of attorney's fees given by Rothberg to Forsyth Building Corporation was insufficient because it did not comply with the law of Georgia as it existed at the time the note was executed; and that within ten days after the plaintiff received the notice mailed to it, the plaintiff tendered payment of the principal and interest of the indebtedness.
After a hearing the trial judge entered an order denying the interlocutory injunction prayed, and dissolving the temporary restraining order therefore entered. The plaintiff excepts to this ruling.
"The general rule is that an action [at law] will not be enjoined at the instance of one not a party thereto." Stone v. King-Hodgson Co., 140 Ga. 487, 491 ( 79 S.E. 122). "Equity will not enjoin the proceedings and processes of a court of law, unless there be some intervening equity or other proper defense of which the party, without fault on his part, cannot avail himself at law." Code § 55-103.
In this case the plaintiff seeks to enjoin the prosecution of a suit to which it is not a party and by the result of which it will not be bound.
The fact that the plaintiff in the action sought to be enjoined is a majority stockholder of the defendant corporation in that action did not operate to make the action a collusive one, or the same person both plaintiff and defendant. Waycross Air-Line R. Co. v. Offerman Western R. Co., 109 Ga. 827, 828 ( 35 S.E. 275); Shingler v. Shingler, 184 Ga. 671, 672 ( 192 S.E. 824); Independent Gasoline Co. v. Bureau of Unemployment Compensation, 190 Ga. 613, 614 ( 10 S.E.2d 58). Nor would collusion, if it existed, constitute grounds for enjoining the proceeding at the suit of one not a party and who would not be bound by the judgment. Smith v. Cuyler, 78 Ga. 654, 659 ( 3 S.E. 406).
For the foregoing reasons, it can not be said that the trial judge erred in denying the interlocutory injunction.
Judgment affirmed. All the Justices concur.