Harris v. Atlanta Northern Railway Co.

87 S.E. 1041, 144 Ga. 701, 1916 Ga. LEXIS 92

• Court: Supreme Court of Georgia
• Decided: February 19, 1916
• Status: Published

Opinion

Per Curiam.

1. Under the Civil Code (1910), § 6165, in order for a bill of exceptions in a civil case to operate as a supersedeas to a judgment of the superior court sought to be reviewed'by this court, the excepting party must, “on or before filing the bill of exceptions, pay ail costs, and, by himself, his agent, or attorney in fact or at law, give” the statutory bond for the eventual condemnation-money. Wheeler v. Wheeler, 139 Ga. 608 (77 S. E. 817).

(a) It appearing in the present case that the requirement of the statute of the payment of all costs was not complied with “on or before filing the bill of exceptions,” such bill of exceptions did not operate as a supersedeas to the judgment of the superior court sought to be reviewed, although the statutory bond was given to the clerk at the time. (&) Under the evidence adduced on the interlocutory hearing, the court erred in granting the interlocutory injunction.

(c) Even if the plaintiff in error is insolvent, in a case of this character it would furnish no ground for injunction.

2. An affidavit of illegality being an available and adequate remedy at law to test the question of whether property of a railroad company is exempt from levy and sale because devoted to a public use, a court of equity will not for that reason enjoin the enforcement of an execution levied on the railroad property. See City of Atlanta v. Grant, 57 Ga. 340; Bittick & Mays v. Georgia &c. Ry. Co., 142 Ga. 159 (82 S. E. 541).

Judgment reversed.

All the Justices concur.

Injunction. Before Judge Patterson. Cobb superior court. March 18, 1915.

N. A. Morris, George D. Anderson, and Fred Morris, for plaintiff in error. Colquitt & Conyers, contra.