22 S.E.2d 318 | Ga. | 1942
1. The judgment which it is sought to review by direct bill of exceptions is one granting a stay of proceedings in behalf of the plaintiff in an equity suit, on the ground that he is in the military service of the United States, under the soldiers and sailors civil relief act of 1940. The judgment is final on the question of a stay of proceedings, and as such is reviewable by direct bill of exceptions. The motion to dismiss the writ of error, on the ground that it is premature, is denied.
2. Where a writ of error from a judgment overruling demurrers to a petition and granting a temporary injunction is pending in the Supreme Court, but no supersedeas has been obtained, the trial court has jurisdiction to receive and pass upon an application for a stay of the proceedings in that court, as provided under the soldiers and sailors civil relief act of 1940.
3. A stay of proceedings under that act should not be granted without giving the opposite party notice and allowing him an opportunity to be heard. The stay order here complained of was granted without such notice and opportunity to be heard, and therefore it was invalid. The order was invalid for the further reason that the act in question does not authorize a stay of proceedings which would have the effect of perpetuating a condition which has been finally adjudged to constitute a public nuisance.
Upon presentation of the plaintiff's application to Judge Porter (Judge Mundy being disqualified) on May 22, 1942, the judge, without notice to the defendants and without any provision for further hearing, entered the following ex parte order: "The foregoing petition of J. P. Pickett having been read and considered, let the same be filed and made a part of the record in this proceeding. It is ordered and adjudged that all proceedings in this case by all *510 persons or parties thereto be stayed as provided by title 50, sections 510, 521 and 523, U.S.C.A., which provisions are contained in the act of Congress commonly referred to as the soldiers and sailors civil relief act for 1940, it having been made to appear to the court that J. P. Pickett is now in active duty of the armed forces of the United States. And it is further ordered that the City of Cedartown, the city manager of the City of Cedartown, and the clerk of said City of Cedartown be restrained from any enforcement of the order of the City Commission of Cedartown, entered on November 6, 1941, directing J. P. Pickett to remove his place of business complained of within thirty days, and that the clerk of said City of Cedartown be restrained from issuing any writ directed to the sheriff of Polk County, Georgia, or a marshal of the City of Cedartown, directing the abatement or removal of such place of business. And it is further ordered that no order be entered on the remittitur from the Supreme Court of the State of Georgia to make the judgment of that court the judgment of the superior court of Polk County, Georgia. Let a copy of the petition and this order be served upon each and all the defendants in this proceeding instanter."
The defendants excepted to this judgment. From the record it appears that the remittitur from the Supreme Court referred to above was dated May 23, 1942, and was filed in the office of the clerk of the superior court on May 25, 1942.
1. The defendant in error moved to dismiss the writ of error, on the ground that the case is still pending in the court below, no final judgment having been rendered therein, and that the bill of exceptions is premature, because the judgment excepted to is not a final judgment. Cited in support of this motion is 50 U.S.C.A. § 582, as follows: "Any interlocutory order made by any court under the provisions of this act may, upon the court's own motion or otherwise, be revoked, modified, or extended by it upon such notice to the parties affected as it may require." Also cited are the following decisions of this court: Ivey v. Rome,
2. Under the soldiers and sailors civil relief act of 1940 (
3. The judgment complained of was granted ex parte, without notice to the opposite party and without affording the opposite party an opportunity to be heard. It is true that the statute under which the application for a stay was brought makes no specific requirement as to notice and service, but the absence of such requirement in the statute does not remove the necessity for such notice. Indeed if the statute required a construction that service upon the opposite party and an opportunity to be heard were not authorized thereunder, then it would have to be held invalid because of this fact. Valuable rights can not be taken away by the courts of this land without notice and an opportunity to be heard. The due-process clause of the fourteenth amendment guarantees such notice and opportunity to be heard. The stay order excepted to must be held invalid, because it was issued ex parte without notice to the opposite party. We think the stay order is invalid for the further reason that the statute under which the application was brought was not intended to apply in a case like the present. Although the language of the statute is general and is unambiguous and is all-embracing, in that it says any action or proceeding may be stayed, it was not intended to serve as an instrument by which one in military service may endanger the peace, the health, and the lives of the people by staying any proceeding brought for the *513
purpose of protecting the general public. In Brooks v.Brooks,
Judgment reversed. All the Justices concur. *514