Frigidice Co. Inc v. Southeastern Fair Ass'n Inc, 12263.
| Decision Date | 17 June 1938 |
| Docket Number | No. 12263.,12263. |
| Citation | 186 Ga. 263,197 S.E. 804 |
| Parties | FRIGIDICE CO., Inc. v. SOUTHEASTERN FAIR ASS'N, Inc., et al. |
| Court | Georgia Supreme Court |
Syllabus by Editorial Staff.
Error from Superior Court, Fulton County; Virlyn B. Moore, Judge.
Suit by the Frigidice Company, Incorporated, against the Southeastern Fair Association, Incorporated, and another, for injunction and damages. To review orders sustaining demurrers to the petition, plaintiff brings error.
Transferred to the Court of Appeals.
Isaac M. Wengrow and Geo. B. Tidwell, both of Atlanta, for plaintiff in error.
Hendrix & Buchanan, W. K. Meadow, and Spalding, Sibley, Troutman & Brock, all of Atlanta, for defendants in error.
Syllabus Opinion by the Court.
The Frigidice Company, Incorporated brought suit in the superior court of Fulton County against the Southeastern Fair Association, Incorporated, and Atlantic Ice & Coal Company, Incorporated, seeking injunction and damages. The case was brought to this court on exceptions to the sustaining of demurrers to the petition. In the statement of the case contained in the brief of the plaintiff in error, after a recital as to some of the injunctive relief sought by the petition, it is stated: "The petition further seeks other equitable relief, but the plaintiff shows that before the lower court could pass upon the petition and before interlocutory hearing could be had, these questions of equitable relief became moot * * * The suit then continued as an ordinary suit for damages on account of the acts complained of and set out fully in the petition." (Italics ours.) In the brief of one of the defendants the truth of this statement is admitted. It is not denied in the brief of the other defendant. In these circumstances the case falls within the principle enunciated in Mills Lumber Co. v. Milam, 184 Ga. 455, 192 S.E. 35; Brightwell v. Oglethorpe Telephone Co., 176 Ga.-65, 166 S.E. 646. The equitable features of the case having been eliminated in the court below before the hearing on the demurrers, the Court of Appeals, and not this court, has jurisdiction of the writ of error.
Transferred to the Court of Appeals.
All the Justices concur.
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