Rabun Mineral & Development Co. v. Heyward

163 Ga. 398 | Ga. | 1926

Lead Opinion

Beck, P. J.

(After stating the foregoing facts.)

A motion to dismiss the bill of exceptions is made in this court, upon the ground that “It appears upon the face of the bill of exceptions that the judgment complained of was not a final disposition of the cause in the court below, and that the cause is still pending in the trial court.” There is no merit in this ground of the motion. In part the petitioner sought injunction upon grounds stated in its petition. The prayer for injunction and injunctive relief was denied, in effect, by the order passed when the court sustained the demurrer “in so far as injunctive relief is prayed.” In the case of Booth v. State, 131 Ga. 750, 756 (63 S. E. 502), it was said: “It is difficult sometimes in actions on the equity side of the court, especially in cases of receivership, to determine whether an order is administrative in its character, resting in the sound discretion of the chancellor, or final in its *405nature. To be final it does not necessarily mean that the judgment disposes of the entire case. A judgment may be rendered separable from a judgment disposing of the entire case, and yet be a judgment that is final' as to some of the substantial rights of the parties as contended for in their pleadings. It is final when, as to the subject-matter of the judgment, any of the substantial rights of the parties litigant are finally settled by the judgment. It then fails to be merely an administrative order, lying in the discretion of the court, and open for modification at any time.” One of the main objects and purposes of the petition filed' in this ease was to secure an injunction. The judgment of the court sustaining the demurrer in so far as injunctive relief was sought was a refusal of the injunction.

The motion to dismiss is also based upon -the further ground that no person is named as defendant in error in said bill of exceptions. The bill of exceptions is sued out by the plaintiff. It clearly appears who were the defendants in the court below. The judgment upon the demurrer was adverse to the plaintiff, and all the other parties named have an interest in upholding that judgment. It further appears that these parties were served with the bill of exceptions; and this court is of the opinion that the parties defendant are sufficiently indicated. The motion to dismiss is therefore overruled.

We are of the opinion that the court erred in rendering the judgment excepted to, which judgment, as ruled above, denies the injunctive relief, but in effect retains the suit in so far as it sets up counter-claims against Heyward and a defense to certain suits and procedures to foreclose mortgages instituted by Heyward and Bynum, and claims for damages against Heyward, and the right to a set-off against the notes and mortgage given to Hey-ward. The other defendants in this case, who were residents of Babun County, have instituted suits upon assignments of the notes or portions of the notes which had been originally given to Hey-ward for the purchase-money of the land in controversy; and it is charged that at the time these assignments were made and accepted the assignees took under such circumstances as affected them with full notice of the equities of petitioner and of the facts and circumstances upon which petitioner claims the right to a set-off and to a final judgment against Heyward, not only as to the amounts of the notes, but for damages in excess of these amounts. Man*406ifestly the rights of the assignees of an interest in the notes are intimately related to Heyward’s right to proceed in the foreclosure of the mortgage held by him, which was given to secure the payment of the purchase-money notes. Consequently all these defendants were properly joined in this equitable action, so that in one suit the conflicting rights may be settled and the entire controversy ended by one verdict.

Judgment reversed.

All the Justices concur.



Dissenting Opinion

Russell, C. J.,

dissenting. I am of the opinion that the motion for rehearing is meritorious. Furthermore, upon a careful consideration of the case since the application for rehearing, I have become convinced that the judgment of the trial court should be affirmed.





Rehearing

ON REHEARING.

Additional portions of the record, which are not referred to or in any way indicated in the bill of exceptions, are brought here as a part of the motion for a rehearing; and the court is of the opinion that they come too late for consideration by this court.

Judgment adhered to.