163 Ga. 27 | Ga. | 1926
Lead Opinion
1. If, in a suit for injunction and receiver against several defendants as a class, one person of the class is named as the defendant to be served and to represent the other members of the class, and at an interlocutory hearing such representative defendant consents to an order granting a temporary injunction and appointing a receiver, an individual defendant of such class, who has not otherwise appeared as a party to the ease, has no valid ground of exception to the judgment, although he alleges that upon request his said representative refused to file the bill of exceptions.
2. In the light of the marginal notes to the bill of exceptions made by the judge at the time of signing the writ of error, the judgment was not erroneous for any reason assigned.
3. After certifying a bill of exceptions assigning error on a judgment granting a temporary injunction and appointing a receiver, the trial judge loses jurisdiction of the bill of exceptions (Jones v. State, 127 Ga. 281, 56 S. E. 453; Cordray v. Savannah Union Station Co., 134 Ga. 865, 68 S. E. 697; Robinson v. Woodward, 134 Ga. 777 (3), 68 S. E. 553; Williams v. Segers, 147 Ga. 219 (3), 93 S. E. 215), but not jurisdiction to hear and determine a motion to dismiss the original petition on the ground that it fails to allege a cause of action. Whether the judge will exercise such jurisdiction while the writ of error is pending in the Supreme Court is within the discretion of the judge. Armstrong v. Am. Nat. Bank, 144 Ga. 245 (86 S. E. 1087), and cit.
4. After the grant of a temporary injunction and appointment of a receiver, as indicated in the first note, the individual defendant therein referred to filed a bill of exceptions, and on the same day filed a motion to dismiss the petition on several general grounds. When the motion came on for a hearing, the judge granted the following order: “T'he Chicago Veneer Company having made a motion to dismiss this case for the reason stated therein, and the plaintiffs having made an oral motion to dismiss said motion upon the ground that the said Chicago Veneer Company had already filed a bill of exceptions to the order appointing a permanent receiver in said case, which bill of exceptions is now pending in the Supreme Court, it is thereupon, after
(a) Under proper construction this judgment did not rule upon the merits of the grounds of the motion to dismiss the original petition, but was a refusal to proceed with the case while the writ of error was pending in the Supreme Court. A wrong reason for such refusal was stated by the judge, but that will not require a reversal, it having been in the discretion of the judge to refuse to proceed with the case at that time.
(b) The ruling made by the judge, when construed as above indicated, leaves open all questions upon the merits of the grounds to dismiss the original petition.
Judgment affirmed in both eases.
Dissenting Opinion
dissenting from the ruling made by the court in paragraphs (a) and (6) of headnote 4. The judge denied the motion to dismiss the petition on the ground of lack of jurisdiction to pass upon the same. The majority hold that this ruling was erroneous. It follows that this judgment should be reversed, and not affirmed.
