Fairview Cemetery Co. v. Wood

Hines, J. (After stating the foregoing facts.) We think that the court erred in granting an interlocutory injunction in this case. The plaintiffs had obtained, in a proceeding brought under the Civil Code (1910), § 5329, a judgment declaring a cemetery a nuisance, and a very drastic order abating the same. The defendants applied for and obtained a certiorari to review this judgment, and thus obtained a supersedeas of the judgment. The effect of the supersedeas is to prevent the enforcement of this judgment in toto. So it prevents the enforcement of that portion of the judgment which enjoins the defendants from making additional burials in this cemetery. The effect of a supersedeas can not be enjoined or destroyed by injunction. Burns v. Sanderson, 13 Fla. 381; 32 C. J. 112, § 130. Certainly no injunction should be granted pendente lite, when the effect thereof will be to destroy the right of supersedeas granted by our statute, unless under very peculiar circumstances, none of which existed in this case. Especially should no restraining order have been granted in this ease, in view of the ruling of this court in which it was held that the operation and maintenance of this cemetery was not a nuisance. Hallman v. Atlanta Child's Home, 161 Ga. 247 (130 S. E. 814). Judgment reversed. All the Justices concur.