Harris v. City of Sparta

• Decision Date: 01 February 1908
• Citation: 60 S.E. 192,130 Ga. 60
• Parties: HARRIS et al. v. CITY OF SPARTA et al.
• Court: Georgia Supreme Court

60 S.E. 192

130 Ga. 60

HARRIS et al. v. CITY OF SPARTA et al.

Supreme Court of Georgia

February 1, 1908

Syllabus by the Court.

Where upon the hearing of a motion to dissolve a temporary restraining order, and before any hearing involving the grant or refusal of an interlocutory injunction, the chancellor orders that the restraining order "be *** dissolved, and any further restraint and injunction as prayed for in said petition is refused," held, that the legal effect of such order is merely to deny further restraint under the previous restraining order, and that it does not constitute any final judgment, or a denial of an interlocutory injunction, and is not subject to review by a "fast" writ of error.

Such order not being a final adjudication of the case, the writ of error is dismissed.

Error from Superior Court, Hancock County; Joseph N. Worley, Judge.

Action by James M. Harris and others against the city of Sparta and others. Judgment for defendants, and plaintiffs bring error. Dismissed.

R. H Lewis, for plaintiffs in error.

W. H Burwell and R. W. Moore, for defendants in error.

HOLDEN J.

James M. Harris and others made an application for injunction against the city of Sparta, alleging that Andrew Carnegie made a proposition to the city that, if the city would furnish a lot upon which to erect a building and make a suitable provision for an annual appropriation of $500 per year for a period of 10 years for the maintenance of a library, he would furnish the amount of $5,000 to be used in the erection of a library building on said lot, and that pursuant to such proposition the city authorities passed an ordinance making said annual appropriation and were proceeding to purchase said lot with funds raised and to be raised by taxation on the property of petitioners and others owning property in said city. Upon said application the chancellor on November 4, 1907, granted a temporary restraining order, and ordered that a copy of the order and petition be served on the municipal authorities within 10 days from the date of the order, and that either party have leave to move to dissolve the restraining order upon 5 days' notice to the opposite party. After giving notice to the plaintiff, the defendant made a motion to dissolve the restraining order. Upon hearing this motion in November the court granted an order that the restraining order "be and the same is hereby dissolved, and any further restraint and injunction as prayed for in said petition is refused." To this order the plaintiffs, within 20 days filed a bill of exceptions, complaining that such action of the court was error, because it was a final order in said case, rendered in vacation on a prayer to rescind a restraining order, and because, under the facts, the restraining order should not have been dissolved, and the restraint and injunction should not have been refused, but should have been continued and made permanent.

1. An order of a chancellor dissolving or refusing to dissolve a temporary restraining order is not reviewable by this court by a fast writ of error. Stubbs v. McConnell, 119 Ga. 21, 45 S.E. 710. The granting or refusing to grant, and the dissolution or refusal to dissolve, a temporary restraining order, are matters separate and distinct from the granting or refusal of an interlocutory injunction. The plaintiff in error, however, contends that the following words in the order of the court dissolving the...