Dougherty v. Harvey

• Decision Date: 31 January 1872
• Citation: 45 Ga. 618
• Parties: WILLIAM DOUGHERTY, re1at0r. v. ROBERT D. HARVEY, Judge of the Rome Circuit.
• Court: Georgia Supreme Court

45 Ga. 618

WILLIAM DOUGHERTY, re1at0r. v. ROBERT D. HARVEY, Judge of the Rome Circuit.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1872.)

Application for mandamus. Writ of error to dissolution of injunction. Before the Supreme Court of Georgia. Januay Term, 1872.

For the facts of this case, see the decision.

William Dougherty, for the application.

McCAY, Judge.

Mr. Dougherty had filed an affidavit and made a motion to reduce the amount due on a judgment held by Mr. Yancey against him, under the Act of 1868. Pending the motion, he ohtained an injunction against any proceedings, to sell under the execution, alleging that the sheriff was about to proceed in defiance of his affidavit. The bill also set up some *additional equities not covered by the affidavit. On the calling of the motion to reduce the judgment, the Court dismissed it on demurrer, and subsequently, during theterm, on motion, dissolved the injunction. Whereupon, Mr. Dougherty filed his bill of exceptions to the judgment dismissing the motion, and to the order dissolving the injunction. Judge Harvey, while perfectly willing to sign and certify the bill of exceptions to the judgment dismissing the motion, declined to sign and certify that part of the bill presented which objected to and assigned error upon his judgment dissolving the injunction, on the ground that the bill of exceptions had not been presented to him within fifteen days after the judgment dissolving the injunction was rendered, and Mr. Dougherty files his petition to this Court for a mandamus.

The Judge of the Rome Circuit, having in his certificate attached to the original bill of exceptions and presented with the petition for mandamus to this Court, stated as his reason for failing to certify and sign the same, that he had previously, and under the Act of October 29th, 1870, signed and certified a bill of exceptions to his judgment, dissolving the injunction, and he having also, in said certificate, indicated that his only objection to the signing and certifying, as asked for, was the question of law as to whether a bill of exceptions to the judgment dissolving an injunction can be presented later than fifteen days after the day of the judgment, this Court is of opinion that a mandamus nisi is not necessary in this case.

And, as from the record before us, and the bill of exceptions, this Court is not clear that the dissolution complained of was not a final disposition of the cause, so far as the injunction...