Frigidice Co. v. Southeastern Fair Ass'n , 186 Ga. 263 ( 1938 )

Hutcheson, J.

The Frigidiee Company Incorporated brought suit in the superior court of Fulton County against the Southeastern Fair Association Incorporated, and Atlantic Ice & Coal Company Incorporated, seeking injunction and damages. The case was brought to this court on exceptions to the sustaining of demurrers to the petition. In the statement of the case contained in the brief of the plaintiff in error, after a recital as to some of the injunctive relief sought by the petition, it is stated: “The petition further seeks other equitable relief; but the plaintiff showjs that before the lower court could pass upon the petition and before interlocutory hearing could be had, these questions of equitablle relief became moot. . . The suit then continued as an ordinary-suit for damages on account of the acts complained of and set out fully in the petition.” (Italics ours.) In the brief of one of the defendants the truth of this statement is admitted. It is not denied in the brief of the other defendant. In these circumstances the case falls within the principle enunciated in Mills Lumber Co. v. Milam, 184 Ga. 455 (192 S. E. 35); Brightwell v. Oglethorpe Telephone Co., 176 Ga. 65 (166 S. E. 646). The equitable features of the case having been eliminated in the court below before the hearing on the demurrers, the Court of Appeals, and not this court, has jurisdiction of the writ of error.

Transferred to the Court of Appeals.

All the Justices concur.