Lambert Hoisting Engine Co. v. Dexter , 127 Ga. 581 ( 1907 )

Atkinson, J..

The only assignment of error complained of which can be dealt with by this court is that which is made upon the ruling of the court rescinding its order of injunction against its receiver. The other assignments of error were upon the rulings of the court made more than six months before the bill of exceptions was tendered, the complaining party failing in the meantime to preserve his right of exception by appropriate exceptions pendente lite. We deal then only with the exception to the ruling of the court in rescinding its order which by its terms restrained the receiver from taking possession of the bonds of the surety company. It will be observed that the date of the order .excepted to is April 7, 1905, and that the date of the bill of exceptions is May 4, 1905. Therefore the bill of exceptions was sued out within 30 days from the date of the order, but not within 20 days. In other words, it was in time if the case falls under the rule provided in the Civil Code, §5539, but not in time if the case falls under the rule applicable to fast writs of error as provided for in §5540. A motion is made by the defendant in error to dismiss the bill of exceptions, upon the ground that the case should have been prosecuted to this court by a fast writ of error, that is, that the bill of exceptions should have been certified within 20 days from the date of the order complained of. We will not deal with the question as to whether or not the writ of error should have been a fast writ or an ordinary writ, because an inspection of the order complained of, upon other reasons, shows that this .court is without jurisdiction. Being without jurisdiction, the judgment of the lower court' can not be reversed. The writ of error is prosecuted for the purpose of reviewing the judgment of the lower court refusing to enjoin the receiver. While the entire matter seems to have been dealt with as an injunction, it was really not such a proceeding. The character of the proceeding is to be determined, not by what it is called, but by what it really is, as made by the facts alleged and the relief- proper to be granted. The application to enjoin the receiver did not come by way of an independent action, but by way of answer to a proceeding already pending in court. The parties were all before the court, contending over the same subject-matter. Under such conditions an independent suit for an injunction would have been inappropriate and a needless multiplication of actions. The court had complete jurisdiction of its own receiver with respect to the matter dealt with in the order excepted to. All that was needed was mere direction to the receiver to do or not to do the particular thing. That is all which in fact was done. Though called an injunction, it was not one. It was a mere order of direction to the receiver. It was not a final disposition of the case, for the reason that the cause is still pending in the court, awaiting trial upon the main issues formed by the demurrer, answer, and pleading. The ruling, therefore, was a mere ad interim order, — such an order as would have rendered exceptions pendente lite appropriate, to the end that the ruling might be reviewed by this court. Such being the character of the order complained of, the writ of error is prematurely brought, and this court is without jurisdiction. Farmers Bank v. Burwell, 120 Ga. 540.

Writ of error dismissed.

All the Justices concur, except Fish, G. J., absent.