Mcginnis v. The Justices Of The Inferior Court Of Gordon County

• Decision Date: 31 March 1860
• Citation: 30 Ga. 47
• Parties: McGINNIS v. THE JUSTICES OF THE INFERIOR COURT OF GORDON COUNTY.
• Court: Georgia Supreme Court

30 Ga. 47

McGINNIS v. THE JUSTICES OF THE INFERIOR COURT OF GORDON COUNTY.

Supreme Court of the State of Georgia

MARCH TERM, 1860.

In Equity, in Gordon Superior Court.. Decision by Judge Crook, at Chambers, January, 1860.

This was a bill filed by Stephen McGinnis, against the justices of the inferior court of Gordon county, to enjoin them from pulling down and removing the toll-gates erected by complainant across the public highway, at his bridge, over the Oostanaula river, and to enjoin and restrain the collection of an execution issued against complainant by the commissioners of roads, under the order and authority of said justices, to enforce the payment of a fine imposed upon complainant for the erection of said toll-gate; said fine being imposed upon the pretence that said gates are unlawful obstruction of a public highway. The bill alleges that the premises upon which said bridge and toll-gates are erected, is the property of complainant, and that he purchased the same with said bridge and toll-gates as appurtenant and belonging thereto, and established and recognized by the superior court of said county as a toll-bridge, with the right and authority of complainant to exact and receive toll, according to a rate established by said court.

To this bill defendants demurred, and, upon argument, the court overruled the demurrer, and ordered defendants to answer.

Upon the coming in of the answer, defendants moved to dissolve the injunction. After argument, the court granted the motion, and dismissed the bill, upon the ground that there was no such case of irreparable injury, by the trespasses complained of and threatened, as entitled complainant to the interposition of a court of equity, and that said injunction had been improvidently granted.

To which decision counsel for complainant excepted, and assigns the same as error.

Sheppard, Johnson & Phillip, for the plaintiff in error.

Dabney & Fain, contra.

By the Court.—Lyon, J., delivering the opinion.

The complainant filed this bill returnable to the October term, 1858, of Gordon superior court. At that term the defendants to the same appeared and put in a general demurrer for the want of equity, and after argument had, the court overruled the same at that term. ' From this judgment no appeal or exception was taken by defendants, but they then put in their answer, and at the April term, 1859, moved to dissolve the injunction on the ground that the equity of the bill was fully denied by the answer. Upon this motion, the court "dissolved the injunction and dismissed the bill, on the ground that there was no sufficient allegation of irreparable mischief, to restrain the trespass, and that the injunction was improvidently granted.''

This judgment we are called on to review, and it is insisted by counsel for defendants, that, although the court below may have improperly dismissed the bill, and dissolved the injunction on the wrong ground, or for a wrong reason; yet, as the true question before the court was a motion to dissolve the injunction on account of the denial of the equity of the bill by the answer, so, that is, or ought to be, the true question before this court; and if we should besatisfied that the answer fully denies all the equities of the bill, then this court ought, at least, to affirm that part of the judgment which dissolves the injunction. Agreeing as we do with the counsel for the defendant in this respect, we shall consider the judgment under review in that aspect. Then, does the answer fully deny all the equities of the bill?

The equities of the bill are, that the inferior court of Gordon county, being the owners of that part of lot No. 191, in the 14th district and 3d section of said county, on which was situated the bridge across Oastanaula river, built by Washington Lawson, having purchased the same at sheriff's sale as the property of said Lawson under executions against him, did on thirty-first day of October, 1855, sell the same to one Newton McDill for the sum of $1,500, which has been fully paid to the inferior court of Gordon county, the whole of which has been received and appropriated to the use and benefit of the county of Gordon; that to induce McDill to make that purchase, the then said inferior court represented to him that the tolls from the bridge would yield him the net sum of $100 per month; that the said court would establish the road-crossing on and at that bridge as a public highway, and they as a court would by its order vest in him the right to charge toll on all persons crossing at a tariff of tolls to be fixed by the court; that McDill did purchase on these representations and inducements; that the inferior court in compliance with their agreement, and in execution of this contract, did on the same day of the sale pass an order of that court changing the road leading to Lawson's ferry, so as to cross on that bridge, and authorizing McDill to establish the rates of toll on said bridge, said order being subsequently amended so as to read "and the same is made a public highway from the time of Newton Mc-Dill's" purchase from the inferior court; and in this amended order the rates of toll were fixed and prescribed by that court for all crossing on the bridge, with this single qualification, that persons hauling grain or desirous of trading in Calhoun would be charged but half price. That three of the members of the court on the day of sale gave to McDill their bond to execute titles to him or his assigns on the payment of the purchase money, for the faithful performance of which they not only bound themselves individually, but also their "successors in office as justices of the inferior courtof Gordon county, " and in that bond to make titles to the land sold was not only particularly specified, but also "together with the bridge which stands thereon;" that subsequently, on the 26th day of January, 1857, the inferior court transferred their bid at sheriff's sale of the premises to McDill, and directed the sheriff of Gordon county to make titles to him, and that the sheriff did so. That complainant subsequently purchased the premises, including the bridge, and that he now in all respects occupies the place in the contract that McDill held, and is possessed by virtue thereof with all the rights and equities that McDill had. That now, notwithstanding the clear rights of complainant under the aforesaid statement of facts, the present inferior court, in the face of the solemn contract and obligations of their predecessors, and of their express grants, all of which appear on the minutes of the court, and are exhibited to the bill, they are using their offices as justices of the inferior court to disturb complainant in the full and free use of his premises, and the exercise and enjoyment of his rights under said contract, and grants from the inferior court, by causing his toll-gates to be torn down as obstructions in the highway, and to coerce him by fines, threats, lawsuits and penalties under color of their office, and without authority of law, and against right, to permit the citizens of Gordon county to pass over his said bridge free of toll.

The defendants, in reply, after admitting that they know nothing of the representations made to McDill, or of the inducement held out by their predecessors to McDill to buy the premises, deny that their predecessors sold the premises to him as the inferior court of Gordon county for $1,500, or any other sum, or that they as a court bid off the premises; but if they did buy or sell the premises to McDill, they did so as individuals, and not as a court, as they, defendants, are unable to find on the minutes of the court any order authorizing such purchase or sale, and this is the whole extent of their denial. Do they deny that their predecessors in the purchase of the lands at sheriff's sale, and in its subsequent sale to McDill, acted in their representative character for the benefit of the court of which they were members, and of the county which they represented, or that they in doing so made the representation, and held out the inducements to McDill as charged in the bill? Do they deny that the court and thecounty got the full benefit of the entire operation; that they got the purchase money? These facts are not denied by the answer, yet, they constitute the very gravamen of the bill. Besides an examination of the bond given by three of the members of the court, to wit: Fain, Swaggerty and King, on the 31st of October, 1855, as well as the order of that court on the same day, the subsequently amended order, and transfer of the bid of the inferior court to McDill, must satisfy any impartial inquirer in the absence of other proof that the allegations of the bill are true. The land on one side of the river was bid off by Stephen T. Mays, a member of the court, who does not join in the bond; that on the other side was bid off by...