Brockett v. Maxwell

• Decision Date: 04 October 1945
• Docket Number: 15267.
• Citation: 35 S.E.2d 906,200 Ga. 38
• Parties: BROCKETT v. MAXWELL, Ordinary.
• Court: Georgia Supreme Court

35 S.E.2d 906

200 Ga. 38

BROCKETT v. MAXWELL, Ordinary.

No. 15267.

Supreme Court of Georgia

October 4, 1945

Rehearing Denied Nov. 16, 1945.

A. B. Conger, of Bainbridge, for plaintiff in error.

Vance Custer, of Bainbridge, for defendant in error.

Syllabus Opinion by the Court.

DUCKWORTH Justice.

1. The amended petition prays only that the ordinary be enjoined from holding an election on the question of nulifying, and declaring the result thereof, under the act of 1941 (Ga.L.1941, p. 199, § 58-1010a, Ann.Code Supp.), a previous election on the question of taxing and controlling alcoholic beverages and liquors in Decatur County, and from performing certain acts preliminary to the election, and for general relief; and, it being conceded by both parties that the election has been held on the question of nullification and the result declared, a reversal of the judgment sustaining the general demurrer to the amended petition would be ineffectual, and hence the case has become moot, and the motion to dismiss the writ of error on this ground must be sustained. Bond v. Long, 133 Ga. 639 66 S.E. 778; Clements v. Wilkerson, 151 Ga. 467, 107 S.E. 47; Waldron v. City of Atlanta, 167 Ga. 620 146 S.E. 318; Smith v. Jeffries, 188 Ga. 649, 4 S.E.2d 637; Abernathy v. Dorsey, 189 Ga. 72, 5 S.E.2d 39.

2. The decision in Sanders v. Mason, 197 Ga. 522, 29 S.E.2d 780, does not conflict which the above ruling. There the prayers included a prayer that the ordinary be enjoined from declaring the results of the election and from putting them into effect. It did not appear that he had performed either of these acts, although the election had been held.

3. Nor does the prayer for general relief prevent the case from becoming moot. Only such relief as is germance to the relief prayed for can be granted under the general prayer. Matson v. Crowe, 193 Ga. 578(4), 19 S.E.2d 288.

Writ of error dismissed.

All the Justices concur.

On Motion for Rehearing.

DUCKWORTH Justice.

The motion for rehearing filed by the plaintiff in error contends that the decisions cited in support of the ruling in paragraph 1 of the syllabus, being cases where the judgments complained of were denials of the relief sought, are not authority for and do not sustain our ruling. It is contended that, since the judgment here under review was one dismissing on demurrer the amended petition for injunction, it presents a question materially different from that where the exception is to a ruling denying the relief sought. That which renders a case moot is the occurrence of the thing which it is sought to prevent. The ruling excepted to, whether on the evidence or on the pleadings, in no wise affects the question of mootness. When this rule is recognized it becomes obvious that the occurrence of the thing sought to be enjoined renders the case moot for precisely the same reason in cases like the present one, where the exception is to a dismissal of the petition on demurrer, and in cases where the exception is to a denial of an interlocutory injunction. It is clear, therefore, that, since the happening of the thing which the petition seeks to prevent renders the case moot, it is moot without regard to whether an interlocutory injunction has been denied or a demurrer has been sustained to the petition. It follows that the cases cited support the ruling made. Furthermore, in Wise v. Sims, 182 Ga. 857, 187 S.E. 102, this court was dealing with a question where the exception was to a judgment dismissing on demurrer a petition for injunction to prevent the holding of an election, and it was held that, since it appeared that the thing sought to be prevented by injunction had occurred, the case was moot, and the writ of error was dismissed.

The movant quotes that portion of paragraph 1 wherein it is said that the amended petition prays only that the ordinary be enjoined from holding the election and declaring the results, and then asserts that this court thereby erroneously stated the relief prayed for and overlooked the prayer of the amendment seeking to enjoin the ordinary from furnishing ballots for the election. The quoted portion of the syllabus states only a part of the sentence wherein the prayers of the amended petition are stated. Further on in the same sentence additional prayers are referred to as follows 'and from performing certain acts preliminary to the election, and for general relief.' Instead of specifically stating, as the prayer of the amendment does, that the ordinary be enjoined from furnishing ballots for the election, we stated that the prayer was that she be enjoined 'from performing certain acts preliminary to the election.' It is difficult to understand how our statement fails...