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STEENHUIS et al. v. TODD'S CONSTRUCTION COMPANY et al.
26572.
NICHOLS, Justice.
Equitable petition. Dekalb Superior Court. Before Judge Dean.
Under such circumstances it would generally he wise exercise of discretion to preserve the right by preserving the status.'
Everett v. Tobar, 119 Ga. 128, 130 (46 SE 72). See Jones v. Lanier Development Co., 188 Ga. 141, 145 (2 SE2d 923); Ballard v. Waites, 194 Ga. 427, 429 (3) (21 SE2d 848); and Maddox v. Willis, 205 Ga. 596 (5) (54 SE2d 632), where the foregoing rule has been applied to various factual situations." Stephens v. State Hwy. Dept., 223 Ga. 713 (1) (157 SE2d 751).
Upon an application of the above principle, it is clear that in a case like the one sub judice where the plaintiff seeks to enjoin the enforcement of a statutory lien upon real property filed after a dispute arose in connection with a contract for the improvement of such real estate and the plaintiff, landowner, is amply protected without the issuance of a temporary injunction, but the supplier of labor and material would not be afforded the protection provided by law if such injunction was granted, the trial court did not err in vacating the temporary restraining order previously entered and in refusing the temporary injunction.
2. "The reference of a case to an auditor rests largely in the discretion of the court; and unless this discretion is abused, a refusal to appoint an auditor will not he held to he erroneous." Teasley v. Bradley, 120 Ga. 373 (47 SE 925); Martin v. Foley, 82 Ga. 552 (9 SE 532).
The dispute in the present case arises from a contract between the parties, and the issues of fact are such that it cannot he said that a jury is not better qualified to pass upon the same than an auditor. The judgment of the trial court refusing to appoint an auditor was not an abuse of discretion.
McClain, Mellen, Bowling & Hickman, A. O. Bracey, III, Arthur Gregory, for appellants.
ARGUED JUNE 14, 1971 -- DECIDED JULY 9, 1971 -- REHEARING DENIED JULY 30, 1971.
Friday May 22 16:17 EDT


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