McCree v. Mayor of Americus

(Atlanta, APPELLATE PRACTICE—BILL OF EXCEPTIONS PREMATURELY BROUGHT.*—Pending the bill below, this court can not review the action of the Court below, upon an injunction, etc. (R.) (Note.—'During this term many other like causes were dismissed or withdrawn upon the same ground.) This is changed by Act of S9th October, 1869, q. v. [412] ■ Writ of Error. Interlocutory Orders. From Sumter county. McCree filed a bill against the Mayor and Council of Americus, to restrain them from erecting a nuisance. Judge Clark, the Chancellor, ordered them to show cause why the injunction should pot be granted. On the 26th of March, 1870, they showed cause, and upon the pleadings and affidavits being read and argument had, the Chancellor refused the injunction. McCree sued out his bill of exceptions, to correct alleged errors in said a.ction. When the cause was called here, it was dismissed, upon motion of defendant’s counsel, because it was prematurely brought up, under the ruling in the Nacoochee Hydraulic Hose Mining Company v. Davis, 40th Georgia Reports, 309, q. v. “Shortly before the act of 1870', it was held by this court that inter [412] locutory rulings on injunctions, not being final judgments within the meaning of § 4250 of the Code, could not be brought here at all by a separate writ of error whilst the main cause was pending below. (Nacoochee, etc., Mining Co. v. Davis,) 40 Ga. 309; (McCree v. Americus,) 41 Ga. 411; (Sparks v. Maxwell,) 41 Ga. 421; (Glass v. Clark,) 41 Ga. 544. The act of 1870 met these decisions by putting an end to all ex parte injunctions and providing for temporary restraining orders in urgent cases until a hearing could be had after notice to the defendant. The hearing provided for was to take place in conformity to the rules of law already existing for granting and dissolving injunctions; that is, what had previously been two proceedings now became one, and whatever showing the defendant might formerly have made by answer, affidavits, etc., on a motion to dissolve, was now to be made in resistance to the granting of the injunction. The complainant was to come in with all that he could urge in favor of the application, and the defendant with all that he could oppose to it, and thus a full and complete hearing was to be had. Either party was allowed to take up the decision for review in the manner pointed out by section, of the Code 3213, to be heard as directed by that and the succeeding section. But we look in vain through the act of 1870 for any separate proceeding to dissolve an injunction, or any right 1o a writ of error thereon under that act.” Kaufman v Ferst, 55 Ga. 352.