Hughes v. Morrison

Fish, C. J. The presiding judge refused to grant an interlocutory injunction restraining the collection of a certain school tax,- on the ground that the decision on a former petition by the same plaintiffs and others, filed for the purpose of enjoining the same tax, was res adjudicata. The refusal to grant a rule nisi upon the former petition was affirmed in Connally v. Morrison, 140 Ga. 492 (79 S. E. 119). It does not appear in the present record whether the former case was ever finally terminated in the court below. If it was finally adjudicated in favor of the defendants therein, the same plaintiffs, who were also plaintiffs in that case, could not file a new petition to enjoin the same tax on other grounds which existed and could have been set up in the first case. If the former case has not been terminated, the plaintiffs, who were parties plaintiff therein, could not ignore it, and file a new petition to enjoin the same tax on other grounds. As the burden of showing error rested on the plaintiffs in error, and they have failed to show that the former case did not furnish ground for a plea of res adjudicata or in abatement, and, in either event, authorize the refusal of an interlocutory injunction, the judgment must be affirmed. (а) The plaintiffs in error sought to have sent to this court, as a part of the 'record in the present case by specification, the record in the former case, and certain affidavits introduced on the hearing of the last application for injunction. But this can not be done. (б) The plaintiffs in error have failed to show ground for reversal; but as this court can not say from the pleadings sent up in the record, and on which the order of the presiding judge was passed, whether res • adjudicata was shown, the judgment is affirmed with direction that the refusal of the injunction stand, but the judgment be amended so as not to adjudge the matter to be res adjudicata. Judgment affirmed, with direction. All the Justices concur.