*1
plain-
1955, and the
1954,
years
for the
said
setting
also
decree
amount, and
tiff
and his
interest
establishing
trust
his
up and
therefrom,
profits
rents and
have the annual
right to
to evict
efforts
making further
enjoined the defendant
judg-
to a
exception is
land.
home on said
him from
to the
demurrer
general
overruling a
ment
which are
together with its exhibits
The amended
Joseph
thereof, affirmatively
part
shows that
made a
expressly
in controversy,
title
the lands
himself of all
Hodges divested
B.
therein, by his two
of November
life estate
deeds
except a
reacquired title thereto.
alleged that he later
1947, and it
interest
life
May 24,
his
estate was
Hence,
petition
amended
convey
anyone; and, as the
he could
which
death,
his
which occurred
interest was terminated
shows, that
execution
the deed under
days subsequent to the
a few
The amended
an interest in and to the lands.
claims
Hodges
V.
allegation that Howard G.
petition contains
sought
May
1948, intended,
Hodges by
deed of
Milburn
subject
agreed
convey any interest in
previously
they
plaintiff,
Hodges and
to Warren
lands
any
practiced on them. As-
consequence
fraud
the deed
the amended
holding, that
but not
suming,
Hodges
plain-
Warren
sufficient to show that
petition Joseph B.
life estate which
interest
acquired some
tiff
May 24, 1948, that
interest ended
lands on
Hodges had
litigation
before this
was instituted.
long
few
later and
to state a
petition
amended
failed
circumstances, the
In these
sought,
the relief
and the defendant’s
of action
cause
have been sustained.
general demurrer
reversed. All the Justices concur.
Judgment
Company
Gilmore.
Railroad
19385. Sandersville
brought
R.
Justice. Mrs. Winifred
Gilmore
Mobley,
Washington
Company
Superior
Court
Railroad
Sandersville
corporation
County, alleging
chartered
is a
that said
approved
Assembly
De-
virtue of an act
General
conduct a railroad
authorized to
under which
cember
business
a railroad estimated to be
miles in
three and one-half
length, extending
point
point
from a
within
Sandersville
Tennille,
Washington County,
within the Town of
both situated in
Geor-
gia;
company proposes
to build and
a railroad
construct
beginning
extending
on the main line of the
railroad and
distance
across-petitioner’s
of almost
property;
six miles to the Gi'iner Place and
*2
that,
property,
in order to construct said line on her
defendant will have
property
to
right-of-way;
condemn the
for its
that
the railroad com-
pany
authority
petitioner’s
is without charter or other lawful
to condemn
purpose;
proposed
land for said
that the
construction
a
is not
relocation
improvement
existing railroad;
or an
of the
engaged
leveling
petitioner’s
approaching
property
land
and threat-
ening
railroad,
construction of the
and should not be
to
money
proposed
for the construction of the
line
authority
authority
when it is without charter
to do so and has no
upon petitioner’s
come
prayed
land or to condemn same. Petitioner
restraining order, restraining
the defendant from
with con-
proceedings
doing
demnation
things
and from
of the
acts
set forth
defendant,
answer,
the
plan-
The
in its
admitted that it was
ning
proceedings
against petitioner
institute condemnation
for said
right-of-way
purchase
over
right-
her land if it were not able to
the
of-way,
petitioner
it had offered
the fair
market value
property,
refused;
charter,
her
together
which she had
that under its
applicable thereto,
with the
authority
laws
pro-
it had full
to build the
posed
permission
line and
that it had obtained
from the
Public
petitioner
Service Commission to condemn the
for the exten-
judge,
sion of
February 11,
railroad. The trial
on
the
entered
following
order:
argument
prayers
"After
evidence and
are denied.”
petitioner
petition, alleging
On March
amended her
that
13, 1956,
proceedings
upon
March
covering
condemnation
were served
her
original petition;
as
land
described
the defendant had
her,
refused;
that,
made a tender of
which she
several
prior
amendment,
to the date of
she herself had named an
having
ordinary
her;
assessor
order to avoid
name
one
prosecute
original petition
judgment
she wishes to
her
to final
and does
participate
proceedings,
not
wish
the condemnation
and she has
way
protecting
enjoins
no
herself unless this court
the condemnation
proceedings,
Thereafter,
April 20, 1956,
which she
be done.
hearing argument
counsel,
after
the court entered an order
prosecution
the defendant from
proceedings,
of the condemnation
provided
might proceed
that it
at its own risk with the construction
railway
petitioner,
line across of the
and ordered
give petitioner
further that the
defendant
reasonable notice of
proceedings
judgment
of condemnation
after final
in the case. To said
excepted
brings
order the defendant
the case to this court
exceptions.
direct bill of
Held:
questions,
The
error raises several
but we need
deal with
question
judgment
whether the order and
(the original
case), denying
prayers
order in the
petition,
of the
petitioner
not entitled to
was
the law of the case
established
on the facts
injunctive relief
the condemnation
existing,
controls the case.
as our
thereon
evidence,
answer,
raised
sole issue
The
not
railroad did
that the
denied the
and to condemn
its line as
to extend
have charter
purpose.
There was
for that
court,
that it was
admitted
as the defendant
line
petitioner’s
land on the
to condemn
decision, therefore,
necéssarily based
property.
solely upon
question
have charter
petitioner’s property?
and to condemn the
extend
applicable
is well stated
under such circumstances
The rule
727),
Sumner,
follows: "It
Sumner
court that
several times held
this
where
been
judge granting or
is based
‘pure question
law,’
will be res
the decision
judge, so
hearing;
far as it was
final
but that
decision
conflicting
matters,
facts from
as the
based
Carr,
evidence,
binding.
Mr.
Collins
upon pure
‘If the
is not
Justice Simmons said:
evidence,
or of law
of law but
evidence
controlling upon
proof
unless the
*3
interlocutory hearing.
Whenever a
same
at the
be the
questions
deciding
depends upon
of law
of
court
discretion
binding.’
City
fact,
First
it is not
See also
Atlanta v.
Methodist
and
of
Ingram Trustees,
226;
Harker,
Church,
448;
Murphey v.
83 Ga.
v.
102 Ga.
ed.)
(2d
77, 91;
Eng.
817; 1
24 Am. &
Enc. L.
Van Fleet’s
115 Ga.
by
interlocutory
Adj.
judge
§
on an
27. A
Form.
jury
conflicting,
hearing
if the evidence is
but his deci
does
bind
binding
by
of
will be
after the facts
found
sion
law
jury.
interlocutory judgment
Supreme
If the
be carried to
Court,
affirmed,
questions of
and there
its decision on
be
law would
controlling
jury
on the
but the
still have a
would
judge
Supreme
find the facts. The trial
Court can settle the law
time,
jury
for all
can not
hands of the
of the case
but
tie the
with
fact,
of
about
much
reference
matter
which it has as
discretion as
judge
interlocutory hearing.
the trial
An
order or decree
temporary
granting
alimony
is
nature.
its
No decision
judge may
on a
which the
make
matter
be
subsequent litigation,
adjudicata
such
be res
decisions will
relate to
of law unmixed with
issue of fact.
if the
present
judge
controversy had,
application
in the
on the
temporary alimony,
by
for
found that
the settlement deed by
appearing
face,
void
Sumner was
reason
some defect
on its
decision,
erroneous,
though
even
would have been res
permanent alimony.”
action
trial of the
for
interlocutory judgment “granting
repeatedly
that an
held
has
This court
injunction,
depends entirely upon
ques-
the same
an
when
Supreme
law, is,
by
Court,
affirmance
a final
tion of
484
adjudication
question.” Ingram
v.
Mercer Univer
Trustees of
(1) (29
sity,
City
273);
There the order of the trial court entered denying plaintiff’s prayers for an law the fixed; being case facts, became and there no additional material being April 20, same it was modify original error for the court to order *4 going from ahead with condemnation rights-of-way to obtain to construct its line. Judgment reversed. All the Duckworth, C.J., Justices concur. concurs reversal, part. dissents Argued July 1956. June 1956 Decided D.B. Murphy, Jr., John B. Harris, D. McMaster, W. C. McMillan, Powell, Goldstein, Frazer & Murphy, error.
Ruth C. Burns, T. Averett, contra. concurring specially. I concur Justice, Duckworth, that, under my opinion it is reversal because right to construct lawful had the 94-321, the railroad Code § I its charter. dissent contemplated under here road mere refusal to majority adjudication that interlocutory injunction was an law of the case. and is had the to construct 19386. VAUGHAN v. VAUGHAN. July 1956.
Submitted June 1956 Decided