Avary v. City of Atlanta

Mobley, Justice. 1. To condemnation proceedings brought under Code Ann. Title 36-6A (Ga. L. 1957, pp. 387, 388; 1962, pp. 461, 462) plaintiffs in error filed an answer and cross bill attacking the constitutionality of the condemnation statute and praying that pending hearing the condemnors be re [77] strained from proceeding against condemnees’ property, that the hearing set before the special master on February 3, 1965, be enjoined until the issues raised are passed on and that after hearing the city be temporarily restrained and permanently enjoined from further prosecution of these condemnation proceedings. Upon presentation of the petition on February 3, 1965, the trial judge entered an order reciting “After a hearing on February 3, 1965, the request for a temporary restraining order is denied. The condemnees shall have 30 days in which to file a bill of exceptions and the special master hearing is postponed until March 5, 1965, 9:00 o’clock A. M. Room 404 Fulton County Courthouse. Feb. 3, 1965. (Signed) Virlyn B. Moore, Judge, Superior Court, Atlanta Circuit.” The bill of exceptions recites that the trial judge heard arguments of counsel for both parties before entering this order. The order appealed from was no more than a denial of a temporary restraining order which is not reviewable by this court on writ of error. Moore v. Selman, 219 Ga. 865 (136 SE2d 329); Callaway v. Jackson, 178 Ga. 767 (174 SE 241); Corbin v. Shadburn, 177 Ga. 776 (171 SE 378); Wofford Oil Co. v. City of Nashville, 177 Ga. 460 (170 SE 369); Crider v. Holbrook, 169 Ga. 765 (151 SE 505); Dorminey v. Moore, 144 Ga. 207 (86 SE 536); Hollinshead v. Town of Lincolnton, 84 Ga. 590 (10 SE 1094). In Crider v. Holbrook, supra, this court held that the order, “Upon hearing, the restraining order in the foregoing case is hereby denied,” which is practically identical to what we have here, was not reviewable. Submitted May 11, 1965 Decided May 31, 1965. Robert Lee Avary, Jr., for plaintiffs in error. Henry L. Bowden, Martin McFarland, contra. Writ of error dismissed. All the Justices concur.