Lankford v. Milhollin , 202 Ga. 264 ( 1947 )

The plaintiff filed a petition to enjoin a decree of sale and to have it declared null and void. He also filed a petition to set aside the same decree. This petition to set aside is based upon two of the grounds which were urged in the petition for injunction. The decree thus attacked had been entered by the trial court in a land-partition suit between the same parties, and was subsequently affirmed by this court. Lankford v. Milhollin, 200 Ga. 512 (37 S.E.2d 197). The instant injunction proceeding has been before this court once before by writ of error from an interlocutory order denying a temporary injunction (Lankford v. Milhollin, 201 Ga. 594, 40 S.E.2d 376), at which time this court ruled that certain of the grounds of the petition were not such as would render null and void the decree under attack, and further ruled that the remaining grounds not specifically dealt with were all such as could have been raised by timely assignment of error in certain prior cases the judgments of which had been reviewed and affirmed by this court; whereupon the order of the trial court denying the grant of a temporary injunction was affirmed. The instant bill of exceptions in the injunction case assigns error on the order of the trial judge, who, after the last-mentioned decision by this court, struck one amendment to the petition, disallowed another, and dismissed the petition on demurrer; while the bill of exceptions in the petition to set aside assigns error on the order of the trial court which dismissed on demurrer the petition and an amendment thereto. Held:

Since the issues raised both in the petition for injunction and in the petition to set aside, as well as the issues sought to be raised in the various voluminous amendments to such petitions, consisting of 74 pages, have almost all been specifically adjudicated adversely to the plaintiff in error in the former proceedings and affirmed by this court, and the small remainder could manifestly have been there raised, it follows that the trial court did not err in striking and disallowing the various amendments and in dismissing the petitions on demurrer.

Judgment affirmed in both cases. All the Justicesconcur.

Nos. 15753, 15754. APRIL 17, 1947. REHEARING DENIED MAY 16, 1947.