126 Ga. 718 | Ga. | 1906
1. Upon the argument of this ease a motion was made to dismiss the writ of error, upon the ground that the suit sought to be enjoined had been dismissed. The fact of dismissal was not admitted by-opposing counsel, and was denied by the plaintiff in error. Under these circumstances it would be necessary for this court to determine as a matter of fact, from extrinsic evidence, whether or .not the suit had been dismissed, before we could dismiss the bill of exceptions on the
•2. A motion was made to dismiss the bill of exceptions on the further ground that the certificate of the judge to the bill of exceptions was void, because “it did not appear why the same was not signed within 20 days from judgment excepted to, nor does it state that the failure to sign such certificate was without fault on the part of the plaintiff in error.” In his certificate the judge certifies that the bill of exceptions was handed to him 14 days after- the judgment refusing the injunction was rendered, and that he kept it until a day more than 30 days from the rendition of the judgment. This explanation shows the plaintiff in error to be without fault, and the writ of error will not be dismissed. Civil Code, §§ 5542, 5543; Acts 1896, p. 45; Railroad Commission v. Palmer Hardware Co., 124 Ga. 633.
3. When a militia district seeks to adopt the “no fence” stock law and put it into effect under the provisions of the Political Code, § 1781, as amended by the act of 1899 (Acts 1899, p. 30, Van Epps’ Code Supp. § 6154), it is a condition precedent to the law going into effect that within six months after the election declaring' for “no fence,” the ordinary (or such other tribunal as may have jurisdiction of county matters) shall have good and substantial fences erected around the lines of such portions of such district as touch non-stock or “fence law” districts or counties, in order to prevent the incursion of stock from other counties or districts, the fences to cross public and private roads, provided, however, that suitable gates are established for passage along such roads. See, in this connection, Puckett v. Young, 112 Ga. 578.
4. The evidence disclosed by the record in this case is for the most part unfounded opinion of witnesses, and uncertain and indefinite, and, taken as a whole, does not show the fencing of the district in the manner or in the time prescribed by the law; and it follows that it has not been shown that the “no fence” law was in effect in the militia'district in question at the time of impounding the animals complained of.
.5. It being alleged in the plaintiff’s petition that his animals had been impounded without authority of law, and that under the guise of an alleged law, which in fact was not in force, the defendant, who was himself insolvent, proposed to continue to impound the plaintiff’s stock and harass him with unfounded suits for the recovery of damages occasioned by the stock, which, under the law, had a right to go at large, and these facts appearing to be true under the evidence, it was erroneous for the judge to decline to enjoin the defendant from further impounding the plaintiff’s stock, and from the further prosecution of his suits.
<5. Under the act of 1899, supra, the ordinary was without jurisdiction to pass any judgment to the effect that “since the election had been held and had resulted in favor of stock law, and since the fence had ]been constructed around the district within six months after the election, the stock law was in force in said district.” Such judgment by the ordinary was void, and upon the hearing of the application for injunction