Burnett v. Fouche

Clarke, Judge. The error assigned in this case is a refusal by the court below to grant a temporary injunction. Before the argument was commenced here, the counsel for the defendant exhibited a transcript from the record of that court show-that the bill had there been dismissed by the complainant, and insisted that this court should therefore dismiss the bill of .exceptions. The counsel for complainant admitted that this had been done, but claimed the right to proceed. It was thought, at the time, best to hear the argument on the case at large, and to reserve the question thus raised. Upon consideration, we are satisfied that the motion of the defendant ought to have prevailed. The only matter submitted to this court by the bill of exceptions is, whether the judge erred in denying the interlocutory- injunction. The bringing of this question here did not transfer the whole case. The bill upon which this question was made was left pending in the lower court. In the several cases where this court held that, before the act of 1870, it could not review the granting or refusing of an interlocutory injunction, the judgment was put on the ground that the cause was still thus pending. 40 Ga. 309, 315, 316; 41 Id. 544, 546; 55 Id. 352. If, as seems clear} the bill was yet pending in the superior court, the complainant could dismiss it by an order of that court. Code, §3447. Being dismissed, it would follow that a bill of exceptions alleging error upon any interlocutory ruling made on the bill, must likewise go. If it were otherwise, this court would be in a position where it would make a decision altogether nugatory. An injunction ordered by it, for instance, would, in such a case, be ineffectual because it would be a judgment in a cause which had ceased to exist. It is therefore ordered that the bill of exceptions be dismissed.