Gray v. Gray

Jan 16, 1907

Reporters:: , ,
Before:: Cobb

Cobb, P. J.

(After stating the facts.)

1-3. The questions dealt with in the first and second headnotes require no elaboration. Whether a case of the character now under consideration should be brought to this court by fast writ of error or by ordinary writ of error is involved in some confusion, on account of apparently different rulings on the subject. In Williams v. Lampkin, 51 Ga. 214, there is a ruling that an exception to the judgment of a chancellor, attaching a defendant in an equity case, for contempt committed in violation of an injunction, can not be brought to this court by fast writ of error. In Farmers and Merchants Bank v. Burwell, 120 Ga. 541, attention is called to the fact that nothing appears in the case in the 51 Ga. except the reporter’s statement and the headnote by the reporter, there not being one word in the report of the case which emanates from a judge. In addition to this, a careful examination of the minutes, records of opinions, dockets, and files, in the office of the clerk, fails to disclose anything in reference to the motion which appears to have been dealt with in the headnote made by the reporter. There was probably something said by the court. It may have been a decision ore tenus upon an oral motion. The authenticity of the decision so reported rests alone upon the mere statement of an officer of the court. In Hayden v. Phinizy, 67 Ga. 758, it was held that the power to attach for contempt for violating an injunction being ‘absolutely essential to the effectiveness of the writ, a proceeding for that purpose was so connected with the injunction that a decision might be brought to the Supreme Court by fast writ of error. In the case just cited the case in the 51 Ga. is not alluded to. The Hayden case is cited with approval in Ryan v. *347Kingsbery, 88 Ga. 364. In Gordon v. Gordon, 109 Ga. 262, the writer overlooked the ease of Hayden v. Phinizy; and if there is anything in the Gordon case which conflicts with the Hayden case, of course it must yield to the former decision. If that which purports to be a decision, in the 51 Ga., is eliminated, as it must be, the decision in the Hayden ease contains the oldest ruling on the subject, and must be followed. The reasoning of Mr. Chief Justice Jackson in that case is certainly strong, and the conclusion is in consonance with the prompt enforcement of obedience to lawful orders of the court. The clerk properly docketed the case as one brought to this court by fast writ of error, and the motion to transfer must be denied.

4, 5. The remaining headnotes require no elaboration. The record not only fails to disclose any abuse of discretion whatever, but rather indicates a wise and salutary exercise of power, calculated to impress upon one who has wilfully failed to comply with an order of the court the authority of the court to compel obedience.

Judgment affirmed.

All the Justices concur, eo:cept Pish, G. J., absent.