Howard v. Smith
| Decision Date | 05 November 1970 |
| Docket Number | No. 25997,25997 |
| Citation | 226 Ga. 850,178 S.E.2d 159 |
| Parties | Norris HOWARD et al. v. Inmon SMITH. |
| Court | Georgia Supreme Court |
Norton, Cooper & Deal, J. Nathan Deal, Gainesville, for appellants.
Boling & Neville, Leon Boling, Cumming, for appellee.
Syllabus Opinion by the Court
The appeal here is from the judgment and order of the trial court dissolving and revoking a temporary restraining order which had previously been entered and which restrained the defendant from exercising the power of sale contained in a certain deed to secure debt. The order appealed from was an appealable judgment under the provisions of § 1(a) 3 of the Appellate Practice Act of 1965 (Ga.L.1965, p. 18; Code Ann. § 6-701(a) 3). The appellee has filed a motion in this court to dismiss the appeal on the ground that the question presented thereby is moot because the sale sought to be enjoined has already taken place. He attaches to his motion documentary evidence substantiating his contention as to the fact of the sale. The appellant in response to the motion to dismiss does not deny that the sale has taken place, but asserts that inasmuch as the notice of appeal from the judgment dissolving and revoking the temporary restraining order was timely filed the same acted as a supersedeas under the provisions of § 8(a) of the Appellate Practice Act (Ga.L.1965, pp. 18, 22; Code Ann. § 6-1002(a)).
Prior to the passage of the Civil Practice Act, no appeal nor any proceeding for obtaining an appeal could have the effect of establishing or denying an injunction indepenently of the order of the judge who, on rendering his decision, might, in his discretion, make such order and require such bond as might be necessary to preserve and protect the rights of the parties until the judgment of the Supreme Court could be rendered thereon. Code § 55-202. Prater v. Barge, 139 Ga. 801, 78 S.E. 119. It was consistently held under that Code section that the failure of the plaintiff in error or appellant to obtain a protective order specifically providing for a supersedeas would render the case moot where the defendant in error or appellee after the judgment of the trial court was rendered had done all that was sought to be enjoined, and that this court would not undertake to pass upon questions presented by the appeal where, even if the judgment were reversed, appellant would derive no benefit therefrom. Bond v. Long, 133 Ga. 639, 66 S.E. 778; Fletcher v. Harper, 135 Ga. 404, 69 S.E. 562; Moody v. Ga. Ry. & Power Co., 139 Ga. 102, 76 S.E. 857; Carlton v. Seaboard Air-Line Ry., 139 Ga. 692, 77 S.E. 1128; Veal v. Riner, 214 Ga. 539, 106 S.E.2d 26. The Code section above referred to was expressly repealed by § 135 (j) of the Civil Practice Act (Ga.L.1966, pp. 609, 688; Code Ann. § 81A-201(j)). Section 62(a) of the latter Act as amended (Ga.L.1966, [226 Ga. 852] pp. 609, 664; Ga.L.1967, pp. 226, 239-40; Code Ann. § 81A-162(a)) provides in part that, Subsection (c) of § 62 of the Act above referred to provides: 'When an appeal is taken from an interlocutory or final judgment granting, dissolving, or denying an injunction, the court in its discretion may suspend, modify, restore, or grant an injunction during the pendency of the appeal upon such terms as to bond or otherwise as it considers proper for the security of the rights of the adverse party.' It is clear from the foregoing language that it was the intention of the legislature in enacting these provisions of the Civil Practice Act to exempt injunction cases from the automatic supersedeas provisions of § 8 of the Appellate Practice Act of 1965 and that no appeal from an order denying an injunction should have the effect of establishing an injunction independently of an order of the court entered pursuant to the provisions of subsection (c) of § 62. The burden rests upon the appellant to obtain such order as will protect his rights and preserve the status quo during the pendency of the appeal.
It is true that the provisions of this section (that is, § 62(c)) of the Civil Practice Act seem to be in conflict...
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Simpson v. Simpson
...mean that upon filing a notice of appeal, supersedeas is automatic in all civil cases, except injunction cases. See Howard v. Smith, 226 Ga. 850, 852, 178 S.E.2d 159 (1970). Supersedeas determinations made by the trial courts are subject to review by the two appellate courts of this state f......
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Faulkner v. Georgia Power Co.
...Ga. 729, 730, 204 S.E.2d 294 (1974). The burden is on the complaining party to seek an injunction pending appeal (Howard v. Smith, 226 Ga. 850, 852, 178 S.E.2d 159 (1970); Dennis v. City of Palmetto, 226 Ga. 853, 178 S.E.2d 161 (1970)), first pursuant to Code Ann. § 81A-162(c), and second p......
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Grindle v. Chastain, A97A1399
...criterion in making this determination is whether the "appellant would derive [any] benefit" from the appeal. Howard v. Smith, 226 Ga. 850, 851, 178 S.E.2d 159 (1970); see Essuon v. Raynor, 231 Ga. 297, 298(2), 201 S.E.2d 416 (1973) (appeal only moot as to injunctive relief, not as to damag......
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O'NEAL v. Oxendine, A98A2154.
...primary criterion in making this determination is whether the appellant would derive any benefit from the appeal. Howard v. Smith, 226 Ga. 850, 851, 178 S.E.2d 159 (1970); see Essuon v. Raynor, 231 Ga. 297, 298(2), 201 S.E.2d 416 (1973) (appeal only moot as to injunctive relief, not as to (......