Free Gift Lodge No. 25 Bros. & Sisters of Benevolence v. Edwards , 161 Ga. 832 ( 1926 )

Atkinson, J.

1. In a bill of exceptions it was stated that “A copy of the petition in said case, with all exhibits attached thereto, is here and now attached and made a part of this bill of exceptions,” and that copies of two designated amendments are “here and now attached and made a part of this bill of exceptions.” General and special demurrers and the answer filed by the defendants were specified as portions of the record to be certified and sent up by the clerk, and it was stated that “It is not necessary to specify the original petition with exhibits and orders thereon, and neither is it necessary to specify the amendments offered to said original petition and the orders thereon, for the reason that copies of the same are hereto attached and made a part of this bill of exceptions.” Eollowing the signature of the attorney of the plaintiff in error to the bill of exceptions are what purport to be copies of the petition and the two amendments, neither of which contains any mark of identification by the judge. Eollowing such copies is the certificate of the judge, which states that “the foregoing bill of exceptions is true, and contains all of the evidence and specifies all of the record material to a clear understanding of the errors complained of,” and directs the clerk “to make out a complete copy of such part's of the record material to a clear understanding of the errors complained and certify the same as such, and cause the same to be transmitted to the present term of the Supreme Court, that the errors alleged to have been committed may be considered and corrected.” The clerk transmitted copies of the general and special demurrers and the answer filed by the defendants, to which was appended his certificate “that the foregoing pages, hereto attached, contain a true transcript of such parts of the record as are specified in the bill of exceptions and required by the order of the presiding judge to be sent to the Supreme Court.” Held, that whether or not the failure to specify the petition and amendments as parts of the record necessary to be sent to this court, and the reference to them in the bill of exceptions as attached thereto, was a compliance with the ruling of this court in Crossley v. Leslie, 130 Ga. 782 (61 S. E. 851, 14 Ann. Cas. 703), such failure to specify and make reference to them in the bill of exceptions does not require dismissal of the writ of error. Civil Code (1910), § 6149 (4) ; Thompson v. Simmons, 139 Ga. 845 (78 S. E. 419).

No. 4938. February 15, 1926.

2. Upon presentation of a petition for injunction and other relief, the judge granted a temporary restraining order and a rule requiring the defendants to show cause at a time stated why an interlocutory injunction should not be granted. The case was duly continued, and was heard at a subsequent date in accordance with orders of continuance. After the hearing, at which evidence was introduced by both sides, the judge took the case under advisement. At a later date the judge rendered a decision which was set forth in several paragraphs, in the course of which, after expressing certain views of the court on the law and evidence, it was stated: “I refuse to grant the injunction, and the restraining order heretofore granted is dissolved.” The language thus quoted was followed by the statement of further views of the court with reference to the case. The decision was in the form of an order signed by the judge. No other order was taken in the case. In the bill of exceptions, after setting forth the order, it was stated that the plaintiff “assigns error thereon, and says that the court erred in dissolving said restraining order, . . and further erred in dissolving said injunction and in refusing to keep the same in force;” and that the judgment “is contrary to law, and is contrary to the evidence,” for reasons that were specifically stated. Held, that the order should be construed as expressly refusing an interlocutory injunction. The above-quoted portion of the order shows that it was essentially different from that involved in Touchton v. Henderson, 158 Ga. 819 (124 S. E. 529). Error was assigned on the judgment that was rendered, on the ground that it was contrary to the law and evidence; and the fact that the judgment was misnamed by calling it an order “dissolving” the previous restraining and injunctive order would not render the assignment of error insufficient.

3. There was no merit in the motion to dismiss the writ of error.

4. The petition alleged ground for injunctive relief to prevent the defendants from interfering with the plaintiff in the conduct of the business of the corporation and the management and control of its property. The uncontradieted evidence was sufficient to support the allegations "relative to such relief, and the judgment refusing such relief was erroneous. Judgment reversed.

All the Justices concur. R. C. Jenkins and ~W. B. Wing field, for plaintiff. M. F. Adams, for defendants. *