Lyon v. Lyon
| Decision Date | 24 March 1898 |
| Citation | 30 S.E. 575,103 Ga. 747 |
| Parties | LYON v. LYON. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. Where an equitable petition prayed for injunction as to several distinct matters, and at an interlocutory hearing a judgment was rendered granting in part, and in part denying the prayers for injunction, and that judgment was brought to this court for review by a bill of exceptions alleging error in the court's refusal to grant the injunction fully, as prayed, and this court, because of errors in admitting evidence, reversed generally the judgment of the trial court and ordered a new hearing, the effect was to adjudicate that a new interlocutory hearing be had upon all questions of injunction involved.
2. Such hearing, however, could not lawfully be had before the remittitur from this court had been filed in the office of the clerk of the court below; and this is so even though the conduct of counsel for the party objecting to such hearing might be fairly treated as a waiver of such filing. Notwithstanding such a waiver, the trial court was without power or jurisdiction to proceed with a new hearing until, in the manner above indicated, it became authorized to do so.
3. At a hearing for an interlocutory injunction, upon an equitable petition, the allegations of which made a case entitling the plaintiff to injunction, the judge had no authority to dismiss "so much of the petition as seeks injunction or restraint against the defendant." Even if, in his judgment, there should be no interlocutory injunction, it was still the right of the plaintiff to have a hearing before a jury, with a view to determining whether or not a permanent injunction should be granted.
Error from superior court, Bartow county; A. W. Fite, Judge.
Suit by Lula T. Lyon against Thomas J. Lyon for divorce and an injunction. From an order dismissing the portion of the petition requesting an injunction, plaintiff brings error. Reversed.
John W Akin and A. S. Johnson, for plaintiff in error.
J. W. Harris, Jr., for defendant in error.
To the July term, 1897, of Bartow superior court, Mrs. Lula T. Lyon filed a petition for divorce and injunction against Thomas J Lyon. The prayers of the petition were (1) that the petition be filed and sanctioned, and that process issue, directed to said Thomas J. Lyon, commanding him to be and appear at the next term of the court to answer petitioner's complaint, etc.; (2) that a divorce a vinculo matrimonii be adjudged and decreed in petitioner's favor against the defendant; (3) that the defendant be enjoined and restrained from remaining or coming upon the property of petitioner, where she lives, or into her home, and from eating and sleeping there, and from attempting any control or authority over the tenants upon the place, or the proceeds thereof, or the income, rents, issues, and profits of the place, and from taking, using, possessing, or interfering with her personal property, and from exercising any control or direction over the two minor children of petitioner and said Thomas J. Lyon, or interfering with petitioner's custody of them; (4) that the custody of the minor children be adjudged to petitioner, and refused to defendant; (5) that petitioner have such other and further relief as the law and facts entitle her to claim. Upon this petition a rule nisi was issued, and the judge granted interlocutory injunction against the defendant, enjoining him from interfering in any way with the laborers or tenants of the petitioner until the further order of the court, and further ordered that "all the other prayers for injunction or restraint be denied and refused." To this refusal of further injunction the plaintiff sued out a bill of exceptions to the supreme court. On August 4, 1897, this court rendered the following judgment upon the writ of error thus brought up: "This case came before this court upon a writ of error from the superior court of Bartow county, and, after arguments had, it is considered and adjudged that the judgment of the court below be reversed, because the court erred in admitting illegal evidence." The remittitur evidencing this judgment of the supreme court had, at the time the action below indicated was taken, never been made the judgment of Bartow superior court, nor entered upon its minutes, nor filed in the office of the clerk of that court; nor had Bartow superior court taken any action upon the remittitur. However, on September 7, 1897, the judge of that court stated to plaintiff's counsel, that the latter had notified him that the defendant wanted a hearing in this case, to which plaintiff's counsel then and there objected, stating that plaintiff did not ask for any further temporary restraining order, nor for any further hearing, and that plaintiff was not moving in the matter. The judge then stated that he would take the matter up on Saturday, September 18, 1897. On that day the judge, while in the city court of Bartow county, which was in session, made a further announcement, in the presence and hearing of counsel for both sides, that the hearing in the Lyon case would be taken up on October 2, 1897. On this latter date counsel for both sides were present, and the plaintiff objected to proceeding with any hearing, or to any action in the premises, because the plaintiff did not ask or seek any additional restraining order, and did not desire any hearing as to whether an additional restraining order should be granted, and because, since the rule nisi was issued, on which the first hearing was had, no other rule nisi had been issued, or applied for by either party, nor had either party made any written motion or written request for any further hearing. The plaintiff's counsel contended that, under the conditions set forth, the judge could not act further in the premises. Defendant's counsel, when the case came on to be heard on October 2, 1897, asked the clerk for the remittitur from the supreme court, to make it the judgment of the superior court. The clerk stated that plaintiff's counsel had the remittitur. Plaintiff's counsel then admitted that he had it at his office, and said he would produce it. It was conceded that the remittitur showed that the supreme court had reversed the judgment or the superior court. Plaintiff's counsel did not object to the hearing of the case because the judgment of the supreme court had not been made the judgment of the superior court, or because the remittitur had not been filed with the clerk. His objections were on other grounds, and did not suggest this ground. Nothing further was said about the remittitur. No evidence was introduced or offered,...
To continue reading
Request your trial