Thompson v. Thompson

53 S.E. 507, 124 Ga. 874, 1906 Ga. LEXIS 650

• Court: Supreme Court of Georgia
• Decided: February 19, 1906
• Status: Published

Opinion

Cobb, P. J.

(After stating the foregoing facts.) Á motion was: made to dismiss the writ of error, on the ground that exception was taken to an interlocutory order which is not of such a character that this court can review it on a fast writ of error. The code provides,, that in suits for divorce the judge presiding may either in term time or vacation grant alimony, “and may also, on said motion, hear and determine who shall be entitled to the custody of the children pending the litigation, as if the same were before him on a writ of habeas corpus.” Civil Code, §2461. Among the cases enumerated in the code which may be brought to this court by fast writ of error-are those involving “the granting or refusing of an application for-alimony.” It is contended that this case “sounds in alimony,” and therefore that any order in an alimony proceeding may be reviewed on a fast writ of error. The general rule is that cases must come to this court on an ordinary writ of error, and the statute making an exception to this rule has always been strictly construed. A fast writ of error lies to review an order granting or refusing alimony, and not to every order that may have been passed while such application for alimony was pending. See Gordon v. Gordon, 109 Ga. 262. But it was said that this was in fact a habeas corpus case, and that under the act of 1897 (Acts 1897, p. 53) all bills of exceptions in habeas corpus cases shall, as regards the practice of the lower court and of the Supreme Court, be governed in all respects,, where applicable, by the laws of force in reference to bills of exceptions in cases of injunction. Where an application for injunction is granted or refused, the ruling complained of may be reviewed on fast writ of error. Civil Code, §5540. An order modifying an interlocutory injunction is not reviewable by a fast writ of error. Stubbs v. McConnell, 119 Ga. 21, and cit. Even if the ease be treated as a nabeas corpus case, the order complained of is one modifying the judgment in the habeas corpus case, and applying the rule applicable in cases of injunction, the order can not be reviewed on fast writ of error. The order complained of can not under any circumstances be treated as one granting or refusing alimony. It is really not a habeas corpus case. It is merely an interlocutory order in a divorce case which is still pending. It belongs to that numerous class of eases which, unfortunately for the parties, can not, under the existing law, be reviewed on fast writ of error. The law of the State as laid down by the lawmaking power, and as interpreted by the decisions of this court, must be obeyed. We are therefore constrained to dismiss the writ of error.

Writ of error dismissed.

All the Justices concur.