In re Georgia Power Co., 8339

Citation89 F.2d 218
Decision Date17 March 1937
Docket NumberNo. 8339,8344.,8339
PartiesIn re GEORGIA POWER CO. GEORGIA POWER CO. v. TENNESSEE VALLEY AUTHORITY.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Walter T. Colquitt, of Atlanta, Ga., and Barry Wright, of Rome, Ga., for appellant.

James Lawrence Fly, Gen. Counsel, Tennessee Valley Authority, William C. Fitts, Jr., Atty. for Tennessee Valley Authority, both of Knoxville, Tenn., and M. Niel Andrews, Asst. U. S. Atty., of Atlanta, Ga., for appellee.

Before FOSTER, HUTCHESON, and HOLMES, Circuit Judges.

FOSTER, Circuit Judge.

These cases may be conveniently disposed of by one opinion.

No. 8339 presents a petition for mandamus to compel District Judge Underwood to grant a motion of petitioner to dismiss a suit brought by it against Tennessee Valley Authority.

No. 8344 is an appeal from a decree entered in the said suit granting an interlocutory injunction in favor of Tennessee Valley Authority and against Georgia Power Company, after the denial of the motion to dismiss.

The pleadings and exhibits are voluminous, but the material facts may be somewhat briefly stated, as follows: In April, 1936, Georgia Power Company, a Georgia public service corporation, engaged in the business of selling and distributing electrical power, filed a suit in the superior court of Catoosa county, Ga., against Tennessee Valley Authority and Catoosa County Cooperative Association, Inc. The last-named company did not enter an appearance and hereafter may be disregarded. The other parties will be referred to respectively as plaintiff and defendant. The petition alleged that plaintiff owned an electrical transmission line in Catoosa county and defendant was engaged in building a parallel transmission line which at a designated point would cross over plaintiff's line, creating a dangerous situation and amounting to a trespass. By appropriate and lengthy allegations the petition challenged the validity of the federal law creating defendant, on the ground that Congress was without authority to enact it; denied that defendant had the right to build its line; and denied that defendant had the right to do anything in Georgia in respect of furnishing electrical power. The petition prayed for interlocutory and final injunctive relief. The suit was removed to the United States District Court for the Northern District of Georgia. The bill was twice amended by leave of court and answers were filed by defendant.

After issue joined, plaintiff pressed the application for an interlocutory injunction. On May 28, 1936, the federal court in Georgia, Circuit Judge Sibley, sitting by designation, denied plaintiff an interlocutory injunction, for reasons stated in a published opinion. Georgia Power Co. v. Tennessee Valley Authority (D.C.) 14 F. Supp. 673. Appeal was not taken from this decree.

On May 29, 1936, the next day after the adverse ruling, plaintiff joined with eighteen other electric power companies, claiming to be similarly situated, in filing a suit in the chancery court at Knoxville, Tenn., against defendant, which suit was entitled Tennessee Electric Power Company et al. v. Tennessee Valley Authority et al. In this new suit the bill had evidently been prepared long in advance, contained practically the same allegations of unconstitutionality and want of authority on the part of defendant, and prayed for substantially the same relief as did the bill pending in the federal court in Georgia. At the same time a similar suit was filed by Georgia Power Company and others in the United States District Court for the Northern District of Alabama. This suit was subsequently abandoned.

The suit filed in the state court in Tennessee was removed to the United States District Court for the Eastern District of Tennessee. Defendant joined issue and pleaded the pendency of the suit in the federal court in Georgia without avail. On December 22, 1936, the federal court in Tennessee granted an interlocutory injunction which had the effect of overruling the order of the federal court in Georgia, entered on May 28, 1936, and substantially granted the temporary relief denied in that suit. In the meantime nothing had been done in the suit in the federal court in Georgia.

On January 2, 1937, defendant gave plaintiff notice that on January 8, 1937, it would apply to the federal court in Georgia for an interlocutory injunction. On January 4, 1937, defendant filed the motion.

On January 8, 1937, the motion of defendant came on for hearing, contradictorily with plaintiff, before District Judge Underwood. Before the hearing started, plaintiff moved to dismiss its suit without prejudice. This was denied. Plaintiff then moved to dismiss "without qualification." This was also denied. Plaintiff did not move to dismiss "with prejudice." The hearing then proceeded and the court granted defendant an interlocutory injunction pendente lite. In substance, the interlocutory decree enjoined and restrained plaintiff, its counsel of record, its officers and agents, from taking, authorizing, or permitting any action to enforce the interlocutory injunction issued by the federal court in Tennessee, on December 22, 1936, in so far as it related to the rights of defendant to construct transmission and rural distribution lines in Georgia, to negotiate or execute contracts for the sale of power within said state, to construct necessary...

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19 cases
  • Tennessee Electric Power Co v. Tennessee Valley Authority
    • United States
    • United States Supreme Court
    • January 30, 1939
    ...Power Company was enjoined from maintaining the action. See Georgia Power Co. v. Tennessee Valley Authority, D.C., 17 F.Supp. 769; Id., 5 Cir., 89 F.2d 218; Id., 302 U.S. 692, 58 S.Ct. 11, 82 L.Ed. 535. Four other complainants have since been permitted to withdraw from the litigation withou......
  • Coates v. Ellis.
    • United States
    • Court of Appeals of Columbia District
    • August 20, 1948
    ...v. Hazeltine Corporation, 3 Cir., 122 F.2d 925; Milwaukee Gas Specialty Co. v. Mercoid Corporation, 7 Cir., 104 F.2d 589; In re Georgia Power Co., 5 Cir., 89 F.2d 218; Ryan v. Seaboard & R. R. Co., C. C. E. D. Va., 89 F. 397; Old Charter Distillery Co. v. Continental Distilling Corp., D.C.D......
  • Skil Corp. v. Millers Falls Co.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • August 26, 1976
    ...140 F.2d 47, 49 (4th Cir., 1944); Milwaukee Gas Specialty Co. v. Mercoid Corp., 104 F.2d 589, 592 (7th Cir., 1939); In re Georgia Power Co., 89 F.2d 218, 221 (5th Cir., 1937). "Since this Court was the first one to acquire jurisdiction over the issues, inasmuch as its jurisdiction will be s......
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    • United States
    • U.S. District Court — District of South Carolina
    • December 17, 1971
    ...This Court has the authority to enjoin defendant Fluorodynamics from further prosecution of the Delaware action. In re Georgia Power Co., 5 Cir. 1937, 89 F.2d 218. There, two suits were filed, one in the District Court of Georgia and the other in the District Court of Tennessee, the Georgia......
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