Fairview Cemetery Co. v. Wood

Supreme Court of Georgia

Fairview Cemetery Co. v. Wood

137 S.E. 761, 164 Ga. 85, 1927 Ga. LEXIS 129

CourtSupreme Court of Georgia

DecidedApril 14, 1927

DocketNo. 5666

StatusPublished

Cited by1 cases

This text of 137 S.E. 761 (Fairview Cemetery Co. v. Wood) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fairview Cemetery Co. v. Wood, 137 S.E. 761, 164 Ga. 85, 1927 Ga. LEXIS 129 (Ga. 1927).

Pincite

Opinion

Hines, J.

(After stating the foregoing facts.) We think that the court erred in granting an interlocutory injunction in this case. The plaintiffs had obtained, in a proceeding brought under the Civil Code (1910), § 5329, a judgment declaring a cemetery a nuisance, and a very drastic order abating the same. The defendants applied for and obtained a certiorari to review this judgment, and thus obtained a supersedeas of the judgment. The effect of the supersedeas is to prevent the enforcement of this judgment in toto. So it prevents the enforcement of that portion of the judgment which enjoins the defendants from making additional burials in this cemetery. The effect of a supersedeas can not be enjoined or destroyed by injunction. Burns v. Sanderson, 13 Fla. 381; 32 C. J. 112, § 130. Certainly no injunction should be granted pendente lite, when the effect thereof will be to destroy the right of supersedeas granted by our statute, unless under very peculiar circumstances, none of which existed in this case. Especially should no restraining order have been granted in this ease, in view of the ruling of this court in which it was held that the operation and maintenance of this cemetery was not a nuisance. Hallman v. Atlanta Child's Home, 161 Ga. 247 (130 S. E. 814).

Judgment reversed.

All the Justices concur.

Free access — add to your briefcase to read the full text and ask questions with AI

Hines, J.

(After stating the foregoing facts.) We think that the court erred in granting an interlocutory injunction in this case. The plaintiffs had obtained, in a proceeding brought under the Civil Code (1910), § 5329, a judgment declaring a cemetery a nuisance, and a very drastic order abating the same. The defendants applied for and obtained a certiorari to review this judgment, and thus obtained a supersedeas of the judgment. The effect of the supersedeas is to prevent the enforcement of this judgment in toto. So it prevents the enforcement of that portion of the judgment which enjoins the defendants from making additional burials in this cemetery. The effect of a supersedeas can not be enjoined or destroyed by injunction. Burns v. Sanderson, 13 Fla. 381; 32 C. J. 112, § 130. Certainly no injunction should be granted pendente lite, when the effect thereof will be to destroy the right of supersedeas granted by our statute, unless under very peculiar circumstances, none of which existed in this case. Especially should no restraining order have been granted in this ease, in view of the ruling of this court in which it was held that the operation and maintenance of this cemetery was not a nuisance. Hallman v. Atlanta Child's Home, 161 Ga. 247 (130 S. E. 814).

Judgment reversed.

All the Justices concur.

Cite This Page — Counsel Stack

Bluebook (online)

137 S.E. 761, 164 Ga. 85, 1927 Ga. LEXIS 129, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fairview-cemetery-co-v-wood-ga-1927.

Opinion

Related

Cite This Page — Counsel Stack