Refuse v. Hogan

38 S.E.2d 417 | Ga. | 1946

1. Where, to a petition for injunction, the defendant files an answer in the nature of a cross-action seeking a money judgment against the petitioner, and also interposes a demurrer to the petition; and where the sole assignment of error is upon a judgment overruling the demurrer, there being nothing in the record showing a final termination of the cross-action, the writ of error is prematurely brought to this court and, accordingly, must be dismissed.

2. Under the special facts of the case, it is ordered that the defendant have leave to file the official copy of the bill of exceptions, now in the office of the clerk of the superior court, as exceptions pendente lite. Bozeman v. Ward-Truitt Co., 141 Ga. 45 (2) (80 S.E. 320).

No. 15460. MAY 9, 1946. REHEARING DENIED JUNE 6, 1946. U. G. B. Hogan filed in Laurens Superior Court, against Leo H. Refuse, an equitable petition alleging substantially the following: On December 20, 1941, the petitioner and the defendant entered into a "landlord and cropper" contract during the year 1942, under the terms of which the petitioner was to furnish the material and the defendant was to cultivate a described 50-acre tract of land known as the Old Cowart plantation. The petitioner complied with his part of the contract, but the defendant refused to cultivate the land, and thereby breached the contract. The prayers were that the defendant be temporarily and permanently enjoined from entering upon the premises or interfering with the petitioner in the cultivation of the farm; that the defendant be enjoined from remaining on the premises; and that process issue.

The petition was sanctioned on March 26, 1942, and a temporary restraining order was granted, which, on April 11, 1942, was continued until the final hearing. On May 16, 1942, the defendant was cited for contempt because he had failed to abide by an interlocutory judgment ordering him to vacate the property by May 19, 1942; and upon his failure to do so, the sheriff was ordered to remove him.

The defendant interposed a demurrer on general and special grounds, and also filed an answer in the nature of a cross-petition, which as amended sought a money judgment against the petitioner because the defendant in 1942 had been illegally evicted from the property.

The petitioner died after the institution of the suit, and on January 13, 1945, R. L. Hogan, his administrator, was made a party.

On February 8, 1946, the trial court overruled the defendant's general and special grounds of demurrer. The exception is to this judgment. 1. While there is no formal motion to dismiss filed in this court, counsel for the defendant in error insist in their brief that the writ of error was prematurely brought to the Supreme Court.

It is the duty of this court upon its own motion to raise the question of its jurisdiction in all cases in which there may be any doubt as to the existence of such jurisdiction, and the present case is one calling for such inquiry. McDowell v.McDowell, 194 Ga. 88 (20 S.E.2d 602); Wood v. W. P.Brown Sons Lumber Co., 199 Ga. 167 (33 S.E.2d 435).

The sole exception is to an order overruling the demurrer to the petition. No cause shall be carried to the Supreme Court upon any bill of exceptions, so long as the same is pending in the court below, unless the decision or judgment complained of, if it had been rendered as claimed by the plaintiff in error, would have been a final disposition of the cause, or final as to some material party thereto. Code, § 6-701.

While the trial court overruled the demurrer to the petition, yet, if its ruling on this demurrer had been favorable to the demurrant, as it is contended it should have been — thus dismissing the petitioner's action — such ruling would have left the defendant's cross-action still pending in the trial court.Hudgins Contracting Co. v. Redmond Co., 176 Ga. 90 (2) (166 S.E. 865). The case, therefore, has not been finally determined. Accordingly, the direct bill of exceptions was prematurely sued out; and this court having no jurisdiction, the writ of error is dismissed.

2. The ruling announced in the second headnote does not require elaboration.

Writ of error dismissed, with direction. All the Justicesconcur.