Baird v. Moses , 21 Ga. 249 ( 1857 )

By the Court.

Lumpkin, J.

delivering the opinion.

A motion was made to dissolve the injunction granted in this case and dismiss the bill:

1st. Because there was no equity in the bill.

2d. Because no steps had been taken to serve the defendants.

The bill was filed in office the 31st of March, 1856. None of the parties had been served except the Sheriff and his deputy, although all the defendants lived in the county.

The Court refused either to dismiss the bill or dissolve the injunction, holding that a motion to do either was not in order until the case was ready for a hearing, or unless the application be made by demurrer.

The judgment of the Court cannot confessedly be sustained on the grounds upon which it was put; still was it not right ? Either the bill and injunction were served, or they were not. If not served, then the defendants were not obstructed in the prosecution of their rights. If they were served, by being served upon the levying officers, then it was competent for the defendants at any time to move to dismiss, demur or answer. And the presumption is, that they would have taken some step had they felt aggrieved by the restraint imposed upon the Sheriff and his deputy. They acquiesed in the delay, and on this account we affirm the judgment of the Court in refusing either to dismiss the bill or dissolve the injunction.

Whether there be equity in the bill, has not been decided by the Court below, neither will it be by this Court.

Judgment affirmed.