Chicago Veneer Co. v. Alexander

• Decision Date: 14 October 1926
• Docket Number: 5234,5313.
• Citation: 135 S.E. 489,163 Ga. 27
• Parties: CHICAGO VENEER CO. v. ALEXANDER et al. (two cases).
• Court: Georgia Supreme Court

135 S.E. 489

163 Ga. 27

CHICAGO VENEER CO. v. ALEXANDER et al. (two cases).

Nos. 5234, 5313.

Supreme Court of Georgia

October 14, 1926

AdditionalSyllabus by the Court.

In suit for injunction and receiver against several defendants as a class, where one of class is named to be served and represent class, and at interlocutory hearing consents to injunction and appointment of receiver, individual defendant of class not appearing as party cannot except to judgment, although alleging representative at request refused to file exceptions.

After certifying bill of exceptions to judgment granting temporary injunction and appointing receiver, trial judge loses jurisdiction of bill, but not of motion to dismiss original petition, because it did not allege cause of action.

Whether after certifying bill of exceptions to judgment granting temporary injunction, and while writ of error is pending in Supreme Court, trial judge will exercise jurisdiction of motion to dismiss petition because it does not state cause of action is discretionary.

Although wrong reason was assigned by trial judge for refusal to consider motion to dismiss petition because writ of error was pending, reversal is not required, since refusal was discretionary.

Error from Superior Court, Laurens County; R. Earl Camp, Judge.

Suit by P. W. Alexander and another against the Dublin Veneer Company. To review order appointing a receiver for defendant and order denying motion to dismiss case, the Chicago Veneer Company brings separate proceedings in error. Affirmed in both cases.

Hines J., dissenting in part.

No. 5234: Jones, Park & Johnston, of Macon, for plaintiff in error.

Thos. W. Hardwick, Burch & Daley, Hightower & New, C. C. Crockett, Wm. Brunson, and M. H. Blackshear, all of Dublin, for defendants in error.

No. 5313: Jones, Park & Johnson, of Macon, for plaintiff in error.

Thomas W. Hardwick, J. S. Adams, Burch & Daley, Hightower & New, C. C. Crockett, Wm. Brunson, M. H. Blackshear, and Chas. E. Baggett, all of Dublin, for defendants in error.

Syllabus OPINION.

ATKINSON J.

1. If, in a suit for injunction and receiver against several defendants as a class, one person of the class is named as the defendant to be served and to represent the other members of the class, and at an interlocutory hearing such representative defendant consents to an order granting a temporary injunction and appointing a receiver, an individual defendant of such class who has not otherwise appeared as a party to the case has no valid ground of exception to the judgment, although he alleges that upon request his said representative refused to file the bill of exceptions.

2. In the light of the marginal notes to the bill of exceptions made by the judge at the time of signing the writ of error, the judgment was not erroneous for any reason assigned.

3. After certifying a bill of exceptions assigning error on a judgment granting a temporary injunction and appointing a receiver, the trial judge loses jurisdiction of the bill of exceptions (Jones v. State, 127 Ga. 281, 56 S.E 453; Cordray v. Savannah Union Station Co., 134 Ga. 865, 68 S.E. 697; Robinson v. Woodward, 134 Ga. 777 [3], 68 S.E. 553; Williams v. Segers, 147 Ga. 219 [3], 93 S.E. 215), but not jurisdiction to hear and determine a motion to dismiss the original petition on the ground that it failed to allege a cause of action. Whether the...