Ingram Et At v. Tr.S Op Mercer Univ.
| Decision Date | 10 August 1897 |
| Citation | 29 S.E. 273,102 Ga. 226 |
| Parties | INGRAM et at. v. TRUSTEES OP MERCER UNIVERSITY et al. |
| Court | Georgia Supreme Court |
Res Judicata—Granting Injunction.
1. Under the decision of this court in the case of City of Atlanta v. First Methodist Church, 10 S. E. 231, 83 Ga. 448, a judgment of a trial court 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.
2. Accordingly, where the granting or refusal of an injunction depended entirely upon the construction of a will, and the trial judge, with the proper parties before him, granted the injunction, his judgment, upon being brought to this court, presented for review a pure question of law, and the affirmance of that judgment finally settled and adjudicated the true meaning of such will, and the same is no longer open to question, either in the trial court or in this court.
3. In view of the foregoing, there was no error in the judgment complained of in the present case.
(Syllabus by the Court.)
Error from superior court, Fulton county; J. H. Lumpkin, Judge.
Action by the trustees of Mercer University against E. W. Martin and others, executors of the will of A. J. Cheney, deceased.
On the second trial Ann. Ingram and others, heirs of deceased legatees, were made defendants. Judgment for plaintiffs, and the Intervening defendants bring error. Affirmed.
J. M. Terrell and Marshall J. Clarke, for plaintiffs in error.
Hardeman, Davis & Turner, W. B. Willingham, and E. W. Martin, for defendants in error.
When this case was here before (Martin v. Trustees, 98 Ga. 320, 25 S. E. 522) this court decided that under the sixth item of the will involved only those nephews and nieces of the testator who were living at the time of his death were entitled to the legacies mentioned in that item, and that the children or grandchildren of those nephews and nieces who had died prior to the death of the testator were not entitled to the legacies of their deceased parents, and that therefore the court below did not err in enjoining the executors from paying the legacies to these grandnephews and grand-nieces. When the case was called for the flnal trial, Ann Ingram, for herself, and Samuel Bullock, as guardian of his four children, Alice, Oscar, Cyprion, and Ida May, were made parties defendant, with leave by appropriate pleadings to set up their rights therein as against both plaintiffs and defendants. Ann Ingram alleged that she was the daughter and only child of Isaac Griffin, who was a nephew of the testator, and that, as the daughter of such nephew, she was entitled under the sixth item of the will to the legacy therein bequeathed. Bullock alleged that his wards were the only children of Ida Bullock, who was a niece of the testator, and who was dead at the time of the testator's death, and that they were entitled to the legacy mentioned in the sixth item of the will, as the children of their deceased mother, and prayed that the executors be decreed to pay to them the legacy so bequeathed.
1, 2. The original petition filed by the trustees against the executors prayed discovery of the names and number of the nephews and nieces and grandnieces and grandnephews of the testator, who claimed legacies as heirs of their deceased parents, the nephews and nieces of the testator. The answer of the executors set out the number and names thus called for, and among them will be found these plaintiffs in error as persons who were claiming legacies under the will. The trial judge declined to grant the decree asked for by these persons, and held that the decision of this court was final as to the law of the case, and that he was bound thereby. He directed a verdict accordingly, and entered up a decree in conformity therewith. To this ruling, verdict, and decree these new defendants excepted.
Counsel for plaintiffs in error claimed that the judgment of this court when the case was here before upon the Interlocutory in junction was not a final judgment, but merely advisory to the court below, and that that court could still disregard it, and that this court was not bound by it as a final judgment in the case. They admitted that this court, in the case of City of Atlanta v. Firs* Methodist Church, 83 Ga. 448, 10 S. E. 231. had decided to the contrary of their contention, but claimed that that decision was erroneous, and asked leave to review it and have it reversed. Leave was granted to review it in the argument before the court as a whole, but upon a careful consideration of that case, and of other cases, similar thereto, which will be mentioned hereafter, a majority of this court declined to reverse it, and determined to adhere to it. This court held in that case, in substance, that where the whole case is adjudicated by this court upon a pure question of law, the judgment is final, and Is not the subject-matter of review in that case. Under the equity practice which has prevailed in this state since the passage of the act of October, 1870 (Civ. Code, §§ 5550, 5558), we think that decision is sound and proper. Under that act many cases are brought to each term of this court which involve no questions but those purely of law. The trial judge passes upon the same, and either grants or refuses an injunction. For a speedy determination of the matter, the law provides a "fast" writ of error to this court, and further provides that this court shall advance the same upon its dockets when requested so to do by either party. This has been the practice since 1870, and, as far as we know or can ascertain from consulting our Reports, the decisions of this court, made upon pure questions of law, upon interlocutory injunctions, have been always regarded as final and controlling upon the trial judge on the final trial before a jury. If it were not so, a great burden has been unnecessarily placed upon this court. A great many of the cases upon these fast writs of error are brought here upon questions purely legal, and this court spends hours, days, and even weeks, in investigating those questions; and to say that, after all of this labor, a decision made in such a case is merely advisory, and does not bind the trial judge or this court in the subsequent litigation between the same parties, seems to us to be absurd. During this term of court a case was brought here from the city of Augusta, involving the acts and contracts of the city and a street-railway company in that city, under the charter of the city and of the railway company, and certain contracts entered into by the city, the street-railway company and certain steam-railroad companies whose lines ran into the city, involving only the construction of these charters and of these contracts, —matters not of fact, but of pure law. The decisions of these questions occupied this court for days in order to arrive at the proper construction of the law upon the charters and contracts.
According to the contention or counsel for plaintiffs in error, when this case Is called for final decree in the superior court, the Judge thereof can treat this decision as a nullity, and, if the case be brought again to this court, the same grounds may be insisted upon, and we will not be bound by the law as declared In that case. Other cases, Involving the legality of the issue of bonds by counties and municipalities, have also been here, and have been determined by this court. In some of these cases the court has sustained the legality of the issue, and the counties and municipalities have acted thereon before final decree. Bonds have been placed upon the market, and sold to innocent purchasers; yet, according to the contention made, if, upon the call of the case for final decree, the objectors to the issuance of the bonds again make the same questions, and, if overruled, bring them here, this court, if the members thereof have been changed, or if the same members have...
To continue reading
Request your trial