21 S.E.2d 643 | Ga. | 1942
1. Where, on presentation of a petition to abate a public nuisance by injunction, an ex parte order is issued, restraining the defendant, until further order of the court, from doing the acts alleged in the petition to constitute a nuisance, and ordering the defendant to show cause on a given date why an interlocutory injunction should not issue, and on the date fixed by the order, after a hearing, interlocutory injunction issues, and the court thereafter denies a motion by the defendant to vacate the restraining order, the Supreme Court will not rule upon the merits of an exception to the judgment denying the motion to vacate the restraining order, it appearing that the question involved has become moot.
2. A petition by the solicitor-general to abate described premises as a public *396 nuisance, alleging that the premises are being maintained and used for the purpose of prostitution and assignation, in violation of the Code, § 72-301 et seq., and attaching as a part of the petition affidavits by three persons who testify that the premises have been used as alleged, states a cause of action. A judgment overruling a general demurrer to the petition is not erroneous.
3. Where the bill of exceptions properly assigns error upon antecedent rulings, and assigns error upon the final judgment which by agreement was rendered by the judge without a jury, on the ground that the same is contrary to law, the Supreme Court will rule upon the assignments of error on the antecedent rulings and on the final judgment in so far as it is affected by such antecedent rulings. But the Supreme Court will not, on such assignment of error, review the final judgment upon any other ground, and will not consider other specific grounds of attack discussed in the brief of the plaintiff in error.
On April 10, 1942, the parties agreed that all questions of law and fact arising in the case would be referred to the judge for final decision, and a jury was expressly waived. The plaintiff introduced a number of witnesses who testified that the allegations of the petition were true, and described the entire premises, showing that they were being used for the illegal purposes charged in the petition. The defendant offered no evidence. On April 15, 1942, the court entered a final decree in which it is recited that by agreement of the parties the case was submitted to the judge without the intervention of a jury, and after hearing evidence and argument of counsel the case was taken under advisement, and after due consideration it is adjudged by the court, that the restraining order against defendant be continued and made permanent; that the defendant is guilty of carrying on a public nuisance as defined *398 by the Code, § 72-301 et seq.; that all of the personal property on the premises is condemned, suppressed, and abated; that the premises are ordered closed and the personalty removed therefrom; and that the house shall not be opened until further order of the court. It was further ordered, that all of the personal property located upon the premises, including furniture, fixtures, liquor, and property of every kind therein found, be sold by the sheriff, and that report of the sale be made to the court for disposition of the proceeds; and judgment for $300 was rendered against the defendant in favor of the State, with special lien on the premises to be enforced as required by the Code, § 72-312. On April 28, 1942, the defendant had a bill of exceptions certified, in which error is assigned on the judgment of April 10, 1942, overruling his motion to vacate the restraining order, and on the judgment of April 10 overruling his demurrer. The final judgment and decree rendered on April 15, 1942, is excepted to in the following manner: After setting forth in full the judgment, the bill of exceptions states that to "the said judgment and final decree plaintiff in error then excepted, now excepts, and assigns the same as error upon the ground that the same was contrary to law." 1. The first assignment of error is to the judgment denying the motion to vacate the ex parte restraining order. The judgment here excepted to was rendered on April 10, after the restraining order had been superseded by an interlocutory injunction on March 20. It thus appears that the question involved by the exception has become moot, and that no judgment by this court could affect the status of the parties as relates to that order. Accordingly no ruling is made upon the merits of this ground of exception.
2. The petition alleges in substance facts which the statute (Code, § 72-301 et seq.) declares to be a public nuisance abatable in the manner here employed. A cause of action is alleged, and the judgment overruling the general demurrer is not error as contended. Edison v. Ramsey,
3. It is observed that the bill of exceptions contains only a general exception to the final judgment, upon the ground that it is contrary to law. Where the only judgment excepted to is the final judgment rendered by the court without a jury, the rule is that a statement in the bill of exceptions that the plaintiff excepts to said judgment as contrary to law is not a valid assignment of error, will not be considered by this court, and the writ of error will be dismissed. Rodgers v. Black,
Judgment affirmed. All the Justices concur. *401