Glass v. Clark

LOCHRANE, C. J. In this case the plaintiffs in error filed their bill, praying an injunction restraining the defendants in error from using a mill or mill-dam, etc., so as to overflow the lands contiguous; and the special averments of the bill allege depreciation of the value of adjacent lands and the sickness occasioned by the acts complained of. This bill was verified on the 8th day of September, 1870, and was presented to the presiding Judge for his sanction and order of injunction, which was refused, October 22d, 1870. A bill of exceptions, on the 31st October, 1870, was presented by complainants’ counsel, alleging as error the order of refusal recited. The record shows that the Judge, owing to his sickness, had not signed the same until December 14th, 1870. The facts of this case bring it within the law, previous to the Acts of the last Legislature, and in delivering the opinion of the Court I yield to the rule laid down by its adjudications, *rather than follow my own convictions in regard to the principles governing this case. 1. We are all concurrent in the opinion that the previous dismissal of a bill, in this case, did not operate as an estoppel of the present application, and that the rights of parties to be heard on applications for injunctions, except on facts identical, and as between the same parties, and privies, is one of clear and unquestioned authority. And we hold that, even as between the iame parties, the right of applying to the Chancellor for an order granting an injunction may be renewed, and only by the decree of the Court, on a full and final hearing, as between parties and privies, does the decision become a final adjudication, es-topping other and unnecessary litigation. 2. But in this case, admitting, as we do, the right of application, was the decision of the Court below refusing an injunction such a judgment as this Court will entertain jurisdiction of, under the 4129d section of the Code? In the case of the Nacoochee Hydraulic Mining Company v. Davis, 40 Georgia, 309, we héld that no cause shall be carried to this Court by any bill of exceptions, so long as it is pending in the Court below, to which principle there is but one exceptions : “Where the decision or judgment complained of would be a final disposition of the cause. ” This was the im [547] perative mandate of the Legislature to the Court, by which it is bound.” Under this decision, and the law previous to the Act of 187'0, we hold that an injunction before the final hearing interlocutory, only, and is not the subject of review here. Bill of exceptions dismissed.