Wofford Oil Co. v. City of Nashville

Supreme Court of Georgia

Wofford Oil Co. v. City of Nashville

170 S.E. 369, 177 Ga. 460, 1933 Ga. LEXIS 325

CourtSupreme Court of Georgia

DecidedAugust 8, 1933

DocketNo. 9197

StatusPublished

Cited by11 cases

This text of 170 S.E. 369 (Wofford Oil Co. v. City of Nashville) 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.

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Wofford Oil Co. v. City of Nashville, 170 S.E. 369, 177 Ga. 460, 1933 Ga. LEXIS 325 (Ga. 1933).

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Opinion

Atkinson, J.

Upon the presentation of a petition for injunction and other relief, the judge granted an order temporarily restraining the defendant, and requiring appearance at a future time and place to show cause why the prayers of the petition should not be granted. Thereafter the judge rendered the following decision: “The within-stated case coming on regularly for interlocutory hearing; and after submission of evidence and argument of counsel, it is considered, ordered, and adjudged that the temporary restrain[461]*461ing order heretofore granted be and the same is hereby dissolved, for the reason that plaintiff appears to have a full, complete, and adequate remedy at law by affidavit of illegality.” No further order was passed.

There is no provision of law for reviewing by writ of error an interlocutory order merely revoking or setting aside a temporary restraining order. Hollinshead v. Lincolnton, 84 Ga. 590 (10 S. E. 1094); Stubbs v. McConnell, 119 Ga. 21 (45 S. E. 710); Ragan v. Ragan, 148 Ga. 151 (96 S. E. 96). The most the plaintiff in error can contend for is that the order revoking the former temporary restraining order was by inference or implication a judgment refusing an interlocutory injunction. “There can be no order or judgment by inference or implication that can be the subject of review by an appellate court.” Putnam Mills & Power Co. v. Stonecypher, 151 Ga. 14 (106 S. E. 87). The order which dissolved the prior temporary restraining order, without more, left pending the petition for interlocutory injunction to be heard and passed on. The order upon which error is assigned not being subject to review, the bill of exceptions must be dismissed. Bradfield v. Abercrombie, 151 Ga. 401 (107 S. E. 45). The language of the judge giving his reason for dissolving the restraining order was not the judgment of the court. Touchton v. Henderson, 158 Ga. 819 (124 S. E. 529). Carolina Portland Cement Co. v. Jones, 162 Ga. 591 (134 S. E. 300). See also James v. Wilkerson, 164 Ga. 149 (138 S. E. 71); Shirley v. Standard Oil Co., 169 Ga. 300 (150 S. E. 215); Forrester v. Benny, 169 Ga. 435 (150 S. E. 555); Williamson v. Allen, 169 Ga. 537 (150 S. E. 907). The case differs from Free Gift Lodge v. Edwards, 161 Ga. 832 (2) (132 S. E. 206), in which the judgment expressly stated that a temporary injunction was refused.

Writ of error dismissed.

All the Justices concur, except Hill, J., absent because of illness.

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Atkinson, J.

Upon the presentation of a petition for injunction and other relief, the judge granted an order temporarily restraining the defendant, and requiring appearance at a future time and place to show cause why the prayers of the petition should not be granted. Thereafter the judge rendered the following decision: “The within-stated case coming on regularly for interlocutory hearing; and after submission of evidence and argument of counsel, it is considered, ordered, and adjudged that the temporary restrain[461]*461ing order heretofore granted be and the same is hereby dissolved, for the reason that plaintiff appears to have a full, complete, and adequate remedy at law by affidavit of illegality.” No further order was passed.

There is no provision of law for reviewing by writ of error an interlocutory order merely revoking or setting aside a temporary restraining order. Hollinshead v. Lincolnton, 84 Ga. 590 (10 S. E. 1094); Stubbs v. McConnell, 119 Ga. 21 (45 S. E. 710); Ragan v. Ragan, 148 Ga. 151 (96 S. E. 96). The most the plaintiff in error can contend for is that the order revoking the former temporary restraining order was by inference or implication a judgment refusing an interlocutory injunction. “There can be no order or judgment by inference or implication that can be the subject of review by an appellate court.” Putnam Mills & Power Co. v. Stonecypher, 151 Ga. 14 (106 S. E. 87). The order which dissolved the prior temporary restraining order, without more, left pending the petition for interlocutory injunction to be heard and passed on. The order upon which error is assigned not being subject to review, the bill of exceptions must be dismissed. Bradfield v. Abercrombie, 151 Ga. 401 (107 S. E. 45). The language of the judge giving his reason for dissolving the restraining order was not the judgment of the court. Touchton v. Henderson, 158 Ga. 819 (124 S. E. 529). Carolina Portland Cement Co. v. Jones, 162 Ga. 591 (134 S. E. 300). See also James v. Wilkerson, 164 Ga. 149 (138 S. E. 71); Shirley v. Standard Oil Co., 169 Ga. 300 (150 S. E. 215); Forrester v. Benny, 169 Ga. 435 (150 S. E. 555); Williamson v. Allen, 169 Ga. 537 (150 S. E. 907). The case differs from Free Gift Lodge v. Edwards, 161 Ga. 832 (2) (132 S. E. 206), in which the judgment expressly stated that a temporary injunction was refused.

Writ of error dismissed.

All the Justices concur, except Hill, J., absent because of illness.

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170 S.E. 369, 177 Ga. 460, 1933 Ga. LEXIS 325, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wofford-oil-co-v-city-of-nashville-ga-1933.

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