Henderson v. Hoppe , 103 Ga. 684 ( 1898 )

Cobb, J.

Hoppe brought his petition against Henderson, a contractor engaged in building a house upon the plaintiff’s premises, for an injunction to require the defendant to desist from further proceeding with the work, and to require him to vacate and turn over to plaintiff the premises and all material thereon, plaintiff alleging that the contract under which the work was to be done was being violated by defendant in divers particulars set out in the petition. The defendant answered, denying the material allegations of the petition. The court, after hearing evidence, passed an order as follows: “It is ordered that the defendant be enjoined and restrained from interfering with the petitioner or his superintendent, from proceeding to finish and complete said house under the terms of the contract, or from in any way interfering therewith. This order is conditional upon the payment to defendant by petitioner of all the contract price, except five hundred dollars, previous to taking possession thereof.” To the passage of this order the defendant excepted. When the case was called in its order in this court, an affidavit of the defendant in' error was submitted, which in substance showed that no supersedeas was obtained when the bill of exceptions was certified, and that since the granting of the relief prayed for the defendant in error had completed the house and had done everything which was to have been done by Henderson under the contract, and that lie was in possession of the house, and there was no further work to be done. Upon this affidavit being submitted, a motion was made to dismiss the writ of error, upon the ground that it would be useless to decide the questions involved in the record, there being nothing for the judgment of this court to operate upon if the judgment was reversed; that if it be determined by this court that the injunction should not have been granted, it would be impossible to restore the status as it was at the timé that the injunction was granted, unless the house should be altered by order of this court in such a way as to put it in the same condition, and to make it present the same appearance as it did at the time that the litigation began. This, of course, would not be done, even if the court has the power to make such an order. While the plaintiff in error does not in terms admit the statements made in the affidavit of defendant-in-error, still the counter-affidavit filed does not deny the substantial facts therein contained. We think this brings the case clearly within the previous rulings of this court, and are therefore constrained to dismiss the writ of error. See Atlanta & Florida Railroad Company v. Blanton, 80 Ga. 563; Thornton v. Manchester Co., 97 Ga. 342; Cranston v. Bank of the State of Georgia, Id. 406. We desire, however, to be distinctly understood as ruling simply that we will not undertake to decide the questions raised by the pleadings and the evidence in this case. Nothing in this judgment dismissing the writ of error is to be construed in any way as affecting the rights of the parties to this litigation. It does not operate as an affirmance of the judgment granting the injunction, and is not intended to decide in any way that the injunction was properly granted. If the injunction was properly granted, then the plaintiff in error has not been hurt. If the injunction was improperly granted, and the plaintiff in error has been -endamaged on account of the plaintiff’s suing it out, the plaintiff in error is entitled to whatever remedies the law may give him against the defendant in error to recover the damages sustained by him." Whether this should be done in a separate suit, if there is a right of action, or whether by amendment to the answer, in the nature of a cross-bill, appropriate relief can be obtained against the defendant in error in the present case, are questions which we do not now decide. What we do decide, however, is that the judgment dismissing this writ of error is not an adjudication of any question growing out of the controversy between the parties to the case.

Writ of error dismissed, with direction.

All concurring.