Elyea, Inc. v. Cenker
| Decision Date | 11 February 1937 |
| Docket Number | 11524. |
| Citation | 190 S.E. 585,184 Ga. 179 |
| Parties | ELYEA, INC., v. CENKER et al. |
| Court | Georgia Supreme Court |
Rehearings Denied March 13 and 24, 1937.
Error from Superior Court, Fulton County; John D. Humphries, Judge.
Suit by A. Cenker and others against Elyea, Incorporated. Judgment for plaintiff, defendant's motion for a new trial was overruled, and defendant brings error.
Affirmed.
On Second Motion for Rehearing.
Watkins Grant & Watkins, of Atlanta, for plaintiff in error.
Little Powell, Reid & Goldstein, Jas. K. Rankin, and Frank Carter all of Atlanta, for defendants in error.
Syllabus OPINION.
1. Under the decision of this court in City of Atlanta v. First Methodist Church, 83 Ga. 448, 10 S.E. 231, an interlocutory judgment granting or refusing an injunction, when the same depends entirely upon a question of law, is, upon its affirmance by the Supreme Court, a final adjudication of such question. Ingram v. Trustees of Mercer University, 102 Ga. 226, 29 S.E. 273, and cit.; Georgia Ry. etc., Co. v. Decatur, 153 Ga. 329, 330, 111 S.E. 911; City of Atlanta v. Smith, 165 Ga. 146, 140 S.E. 369.
2. When this case was here before (Elyea, Inc., v. Cenker, 182 Ga. 287, 185 S.E. 253), the law of the case upon the present appeal was fixed, at least in so far as applicable to the parties in the cause. Western & Atlantic R. Co. v. Third National Bank, 125 Ga. 489, 54 S.E. 621; Southern Bell Telephone, etc., Co. v. Glawson, 140 Ga. 507, 79 S.E. 136; Georgia Ry., etc., Co. v. Decatur, supra; Towers v. City Land Co., 159 Ga. 486, 125 S.E. 837.
3. The controlling question of fact in the trial now under review was whether a tax deed was void because the levy of the tax fi. fa. was excessive. The substantial facts are stated in 182 Ga. 287, 185 S.E. 253, supra; and the evidence on the trial now under review did not materially differ therefrom. Upon the above point the plaintiff introduced a number of witnesses whose testimony tended to show that the property levied on was capable of division, that the value of the property which was in fact levied on was many times in excess of the tax fi. fa., and that there was unimproved property in the rear of a valuable brick building, and had it alone been levied on it would have been sufficient to have paid the tax execution. The defendant introduced no testimony whatever; and so a verdict for the plaintiffs was demanded, and any of the alleged errors in the charge to the jury, of which complaint is made in the motion for new trial, are ineffective. See People's Savings Bank v. Smith, 114 Ga. 185(4), 39 S.E. 920.
4. The court did not err in overruling the motion for new trial.
Judgment affirmed.
All the Justices concur.
On Second Motion for Rehearing.
It is insisted in a second motion for rehearing that excessive levy was not an issue in the case under the evidence, because there was no evidence to show that the property levied on was capable of being so subdivided that a part thereof less than the whole could have been levied on and sold for an amount sufficient to satisfy the...
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