48 S.E.2d 451 | Ga. | 1948
In an equitable proceeding to cancel a deed and for injunction to restrain the cutting of timber upon the land in controversy, the defendant, while submitting to the restraining order, invoked the relief afforded by the Soldiers' and Sailors' Relief Act of 1940 (
1. The defendant in error contends that the bill of exceptions in this case is premature because the judgment denying the defendant's motion to set aside the ex parte order revoking the previously granted stay under the Soldiers' and Sailors' Relief Act is not a final judgment such as would authorize a direct bill of exceptions to this court. This contention is without merit. The only question raised by the petition to revoke the order revoking the stay is whether or not under the Federal statute such order was proper. No phase of the main case was involved in the motion. The case is therefore controlled in principle by the case of City of Cedartown v. Pickett,
2. It is provided by the Soldiers' and Sailors' Relief Act, 50 U.S.C.A. § 584, that "This Act shall remain in force until May 15th, 1945: Provided that should the United States be then engaged in a war, this Act shall remain in force until such war is terminated by a treaty of peace proclaimed by the President, and for six months thereafter." This court *784 will take judicial cognizance of the fact that the United States was engaged in active war on May 15, 1945, and that a treaty of peace has not thereafter been proclaimed by the President; and is therefore bound to give effect to the express provisions of the particular Federal statute now under consideration, which by its explicit terms would require that the stay of proceedings against the soldier be kept in force unless and until legally revoked.
3. Service on the opposite party and an opportunity to be heard is a pre-requisite to the validity of an interlocutory order granting a stay of proceeding as authorized under the Soldiers' and Sailors' Relief Act. City of Cedartown v. Pickett,
Judgment reversed. All the Justices concur, except Atkinson, Wyatt, and Head, JJ., who dissent on the ground that the writ of error was premature, there being no final judgment in the case to which exception could be taken.