Ivey v. Mayor of Forsyth

Supreme Court of Georgia

Ivey v. Mayor of Forsyth

139 S.E. 354, 164 Ga. 705, 1927 Ga. LEXIS 260

CourtSupreme Court of Georgia

DecidedSeptember 9, 1927

DocketNo. 5598

StatusPublished

Cited by5 cases

This text of 139 S.E. 354 (Ivey v. Mayor of Forsyth) 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

Ivey v. Mayor of Forsyth, 139 S.E. 354, 164 Ga. 705, 1927 Ga. LEXIS 260 (Ga. 1927).

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Opinion

Atkinson, J.

The bill of exceptions in this ease assigns error upon a judgment sustaining a general demurrer to a paper addressed to the superior court of Monroe County. The paper commenced: “This petition of plaintiffs in the case of Ivey et al. vs. The Mayor and Aider-men of the City of Eorsyth, a suit now pending in Monroe superior court, shows the following facts.” The paper did not otherwise state the names of the persons alleged to be “plaintiffs” therein or the plaintiffs in the pending action, but contained a narrative of interlocutory proceedings in said action, and the substance of the pleadings therein, and certain interlocutory rulings of the trial court, to which no exceptions were taken within the time provided by law. The paper concluded with prayers for injunction and other relief, similar to those alleged to have been made in the original petition as amended in the pending action. Held, that the trial court properly construed the paper as an effort to amend the petition in the pending action. The amendment did not include any matter not comprehended in the petition as previously amended in the “pending” action. The judgment complained of did not purport to dismiss the petition in the pending action. In this respect the case differs from Rabun Mineral & Develop[706]*706ment Co. v. Heyward, 163 Ga. 398 (136 S. E. 272), and Newton v. Roberts, 163 Ga. 135 (135 S. B. 505). The judgment complained of was not the refusal of an injunction, nor, if it had been rendered as claimed by the plaintiff in error, would it have been a final disposition of the cause, or final as to any material party. Accordingly the writ of error is premature and can not be entertained. Civil Code (1910), §§ 6138, 6153: Jackson v. Green, 58 Ga. 460; Canuet v. Seaboard Air-Line Railway, 128 Ga. 41 (2) (57 S. E. 92) ; Burkhalter v. Roach, 145 Ga. 834 (2) (90 S. E. 52). Writ of error dismissed.

[705]*705Appeal and Error, 3 C. J. p. 433, n. 7; p. 480, n. 1; p. 559, n. 8; p. 561, n. 10.

[706]*706No. 5598. September 9, 1927. W. M. Ciarle, for plaintiffs. Willingham & Willingham, for defendants. All the Justices concur.

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Atkinson, J.

The bill of exceptions in this ease assigns error upon a judgment sustaining a general demurrer to a paper addressed to the superior court of Monroe County. The paper commenced: “This petition of plaintiffs in the case of Ivey et al. vs. The Mayor and Aider-men of the City of Eorsyth, a suit now pending in Monroe superior court, shows the following facts.” The paper did not otherwise state the names of the persons alleged to be “plaintiffs” therein or the plaintiffs in the pending action, but contained a narrative of interlocutory proceedings in said action, and the substance of the pleadings therein, and certain interlocutory rulings of the trial court, to which no exceptions were taken within the time provided by law. The paper concluded with prayers for injunction and other relief, similar to those alleged to have been made in the original petition as amended in the pending action. Held, that the trial court properly construed the paper as an effort to amend the petition in the pending action. The amendment did not include any matter not comprehended in the petition as previously amended in the “pending” action. The judgment complained of did not purport to dismiss the petition in the pending action. In this respect the case differs from Rabun Mineral & Develop[706]*706ment Co. v. Heyward, 163 Ga. 398 (136 S. E. 272), and Newton v. Roberts, 163 Ga. 135 (135 S. B. 505). The judgment complained of was not the refusal of an injunction, nor, if it had been rendered as claimed by the plaintiff in error, would it have been a final disposition of the cause, or final as to any material party. Accordingly the writ of error is premature and can not be entertained. Civil Code (1910), §§ 6138, 6153: Jackson v. Green, 58 Ga. 460; Canuet v. Seaboard Air-Line Railway, 128 Ga. 41 (2) (57 S. E. 92) ; Burkhalter v. Roach, 145 Ga. 834 (2) (90 S. E. 52). Writ of error dismissed.

[705]*705Appeal and Error, 3 C. J. p. 433, n. 7; p. 480, n. 1; p. 559, n. 8; p. 561, n. 10.

[706]*706No. 5598. September 9, 1927. W. M. Ciarle, for plaintiffs. Willingham & Willingham, for defendants. All the Justices concur.

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139 S.E. 354, 164 Ga. 705, 1927 Ga. LEXIS 260, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ivey-v-mayor-of-forsyth-ga-1927.

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