22 S.E.2d 730 | Ga. | 1942
1. The motion to strike one of the assignments of error, because there is no sufficient identification of the paper referred to as part of the record, is denied.
2. Under the rulings in McGinty v. Chambers,
Under the ruling by this court as to the demurrer, it is unnecessary to state other facts and exceptions relating to the trial.
In a former decision in this case, dismissing as premature a writ of error excepting to the overruling of the demurrer to the petition, leave was granted "to file the copy of the bill of exceptions in the superior court, as exceptions pendente lite."Dooly v. Gates,
In the former decision in McGinty v. Chambers, supra, involving the rights of the same two newspapers whose rights are now involved, this court on the evidence in that case made the rulings quoted in the present decision, not only as to the ineligibility of the Murray Herald at that time, but as to the eligibility of the Chatsworth Times. That case arose on a petition for injunction by the owners of the Times against the county officials, to prevent them from designating the Herald as the official organ. The petition alleged not only the ineligibility of the Herald, but the eligibility of the Times. Although the decision in that case shows that the trial court overruled a general demurrer to the petition, and that no exceptions were taken to that ruling, it was not stated what the grounds of the demurrer were, or whether they raised any question as to the eligibility of the Times, as alleged in the petition. The bill of exceptions in that case shows only that the "defendants [the county authorities] interposed their demurrer, both general and special, to the petition;" that "certain of their special demurrer was sustained, and was met by appropriate amendment," *790 and that "the remaining ground of demurrer was overruled." The demurrer was not specified or brought up with the record in that case; and nothing appears to show whether or not the eligibility of the Times was attacked. So far as the record indicates, the demurrer might have been wholly grounded on the proposition that the petition showed on its face that the Murray Herald was eligible for selection by the defendant county officials.
The owners of the Times, against whom the decision refusing an interlocutory injunction was made, after the hearing of evidence on both sides, brought the bill of exceptions to this court. There was no cross-bill of exceptions by the county officials attacking the ruling on the demurrer. There was no invoking by the plaintiffs in error of the favorable ruling on demurrer, as establishing any "law of the case" in their favor; and no assignment of error that the refusal of the injunction was an abuse of discretion, on the ground that the court had sustained their petition by his ruling, and that they had proved their case as laid. They merely assigned error on the refusal of an injunction, as contrary to law under two specific assignments of error: (1) That "the pleadings and evidence by plaintiff [the sworn petition as amended being introduced in evidence, besides oral testimony with direct and cross-examination] show that the Chatsworth Times has been the established official organ for Murray County for twenty years, and that there is no other newspaper which has been published at Chatsworth, Georgia, for a period of two years." (2) That "there is no pleading or evidence in the record [the sworn answer of the defendants being introduced in evidence] which shows that the Chatsworth Times has in any way or manner abandoned its position as the official organ for Murray County, it having continuously, since the period of its establishment, published the official advertising of Murray County, and offers to continue such publication of advertising within the rules required by law."
The decision by the trial court, in the McGinty case, dissolving the previous restraining order, to which the court referred in its order refusing an interlocutory injunction, recited, as the only reason for such dissolution, that "after hearing evidence . . the court is not convinced that the plaintiffs have a clear legal right to injunctive relief, and does not feel justified in setting aside *791
discretionary acts of county officers acting under discretionary powers."
1. The motion by the defendant in error to strike the assignment of error on the overruling of a general demurrer to this petition for mandamus, on the ground that the copy in the record of the previously dismissed bill of exceptions, allowed by the decision of this court to be filed as exceptions pendente lite (
2. Under the Code, § 39-1101, a newspaper qualified to be selected by the designated county officials as the official organ of the county must be one which, at the time of its selection, is published in such county, if at such time a newspaper is published in the county. Under § 39-1103, no newspaper shall be made the official organ of any county, even though published in the county, "unless such newspaper shall have been continuously published and mailed to a list of bona fide subscribers for a period of two years, or is the direct successor of such journal or newspaper." The Chats worth Times, selected by the county officials, was at the time of the contest unquestionably a bona fide local newspaper of Murray County, and had been for many years, unless its local character was nullified by the fact that it had not been mechanically printed in Murray County for the two preceding years. At the time of the present suit it was also mechanically printed in the county.
Two decisions dealing with this subject apparently can not be wholly reconciled. The five-judge decision of Carter v. Land,
In the McGinty case, the court used this language: "While the evidence also shows that the mechanical work [of the Chatsworth Times] has been done at the Calhoun plant in Gordon County for the past two years, under a proper construction of §§ 39-1101 and 39-1103 the evidence demands a finding that the Chatsworth Times is established, and has been established, for the past two years in Murray County, and is legally entitled to continue to receive the legal advertisements until some other newspaper entitled to be the official organ is so designated." This language is clear, specific, and directly controlling, unless, as contended, it be taken as mere obiter.
As shown by the statement of facts in the present case, there was in the McGinty case a demurrer to the petition for injunction, brought by McGinty as owner of the Chatsworth Times, to enjoin the county officials from carrying out their expressed purpose of designating the Murray Herald as the official organ. This demurrer was overruled, and no exception was taken to that order. The plaintiffs in the McGinty case planted their rights on the theory that their newspaper, the Times, was eligible for designation, and that the Herald was not. In reversing the judgment refusing an injunction, and deciding in McGinty's favor, this court could very properly have given its reasons, as it did, why the plaintiffs in that case were entitled as a matter of law to maintain their action as publishers of a newspaper eligible for designation, and *793 to prevail in the suit, for the reason that the other newspaper was not eligible for selection. This was true, even had it appeared — although it did not — that the order on demurrer had adjudicated as the law of the case that the Times under its averments was eligible for selection. There was nothing to prevent this court, under such circumstances, from laying down the legal rule, as one of the bases of its decision, that made the suit maintainable by the Times as party plaintiff, even though there might have existed another and different technical rule known as the law of the case, which would have required the same conclusion.
As expressed by the Supreme Court in Union Pacific Co. v.
Mason City Co.,
First. It appears from an examination of the record in theMcGinty case that the demurrer was not brought to this court with the bill of exceptions; and there is no way for this court to determine the scope and effect of the judgment of the trial court overruling the demurrer in that case. The demurrer might not have questioned the eligibility of the Chatsworth Times. In overruling *794 the demurrer of the county officials to the petition of the Times, all that the trial court may have determined might have been that the petition did not show on its face that the Murray Herald was eligible to be designated by the officials.
Second. As an additional reason why the quoted language in the McGinty decision can not be treated as obiter, it appears that the judge in that case, after overruling the general demurrer to the petition on grounds which are not indicated, proceeded to hear evidence on both sides, including the sworn pleadings and oral testimony of the petitioners with their cross-examination. The judge then dissolved the previous restraining order, and assigned as the reason therefor that "after hearing the evidence . . the court is not convinced that the plaintiffs [Chatsworth Times] have a clear legal right to injunctive relief, and does not feel justified in setting aside discretionary acts of county officers acting under discretionary powers." In subsequently refusing an interlocutory injunction in the McGinty case, the judge referred to this quoted order. No reference was made in either order to the ruling on demurrer. Nor did the bill of exceptions in any wise invoke for the plaintiff in error (Chatsworth Times) the previous holding on demurrer as settling the "law of the case," and as entitling them to a holding in their favor upon proof without dispute of the averments of their petition. Their bill of exceptions merely assigned error generally on the refusal of the injunction as "contrary to law," and because "the court should have then and there granted the injunction," with only two specific assignments of error, which referred merely to "the pleadings and evidence" as showing that the Chatsworth Times "had been the established official organ for twenty years;" that "no other newspaper" had been "published at Chatsworth, Georgia, for a period of two years;" and stated that there was "no pleading or evidence" that the Times "has in any way abandoned its position as the official organ of Murray County." There was no cross-bill of exceptions by the county officials, in the McGinty case, attacking the ruling on demurrer; and therefore the only questions which were before this court in rendering that decision were such as were raised by the exceptions actually taken. In an equity cause, upon a general exception to an order on injunction as "contrary to law," this court will consider only "whether there was sufficient evidence to support the *795
finding and judgment," without looking to any particular error of law that is not raised by some specific exception. Calhoun v.Ozburn,
Judgment reversed. Reid, C. J., Bell, P. J., and Grice andDuckworth, JJ., concur.