Sheibley v. Georgia Southern Railroad

Crawford, Justice. The plaintiffs in error filed their bill returnable to the March term, 1880, of Floyd superior court, praying an injunction restraining the defendant from going, or trespassing on, over, or through their land until it paid to them the sum of $1,250.00, with interest and cost, it being the amount which was recovered as damages for the right of way through their said land. An order nisi was granted by the chancellor requiring the defendant to appear and show cause on a day therein named, why the injunction as prayed for should not be granted. The hearing on this order was postponed from time to time until the first or appearance term of the bill. The defendant had, before that time, under the order nisi, shown as cause why the injunction should not be granted, his several grounds, which were set out as a general demurrer to the complainants’ bill, and which, having been called up during the said term, was, by consent of parties, heard, and after argument had thereon, it was ordered by the court that the injunction prayed for be refused, the demurrer to the bill sustained, and the cause dismissed. To this judgment and order complainants excepted, and sued out a writ of error under section 3213 of the Code. Upon the calling of the case in this court a motion was made to dismiss on the ground that it was prematurely brought. Whenever there is an application for injunction, and the same is granted or refused, a writ of error lies to such decision of the chancellor, and the same may be brought up immediately for -review. But where a bill is dismissed on demurrer by a decree -either at chambers 01-in term, no provision is made by law for the hearing and reviewing such judgment sustaining the demurrer and dismissing the bill. 44 Ga., 634; 58 Ib., 184; 63 Ib., 437. Before the judgment of the court in this case was [109] •entered ora the minutes, counsel for the plaintiffs in error :asked leave to withdraw the bill of exceptions and have the same made returnable to the September term of this ■court, and it being within thirty days from the decision pronounced by the chancellor it was so ordered. 55 Ga., 350.