Kennedy v. Edenfield

Russell, C. J. In this ease a motion is made to dismiss the writ of error, upon the ground that the same is premature and falls within the provisions of section 6138 Civ-il Code of 1910. Under very numerous decisions of this court we have no option other than to dismiss the writ of error. Following the decision ia Hollinshead v. Lincolnion, which we have quoted in the headnote, the same rule has been applied, without exception, in the following cases. Smith v. Willis, 107 Ga. 792 (33 S. E. 667); Stubbs v. McConnell, 119 Ga. 21 (45 S. E. 710); Ivey v. Rome, 126 Ga. 806 (55 S. E. 1034); Berry v. Parker, 130 Ga. 741 (61 S. E. 541); [818] Young v. Harris, 146 Ga. 338 (91 S. E. 39); Higgins v. Gaines, 150 Ga. 786 (105 S. E. 371); Ragan v. Ragan, 148 Ga. 151 (96 S. E. 96); Bradfield v. Abercrombie, 151 Ga. 401 (107 S. E. 45); Pennington v. Macon County Bank, 156 Ga. 767 (120 S. E. 107). In the case before us it would seem at first blush that whatever rights the petitioners might have under the facts stated in the petition might be destroyed by the refusal of the court to grant the injunction prayed for, and that a ruling affirming the judgment of the trial judge would leave the petitioners remediless, in violation of the great cardinal principle that for every wrong the law provides a remedy; but keeping in mind the provision of the Civil Code, § 6138, as to exceptions pendente lite, which may be considered by this court after the termination of the litigation in the lower court, it will be readily seen that a remedy has been provided. Furthermore, the very pendency of the litigation (for the suit is still pending in the lower court) will protect the petitioners, under the doctrine of lis pendens. So we simply follow all of our prior rules in dismissing the writ of error, the more readily because the action of the trial judge in dissolving the temporary restraining order does not prejudice any of the rights, if rights they be, sought to be asserted by the petitioners. Writ of error dismissed. All the Justices concur.