Davis v. Mayor of Jasper , 119 Ga. 57 ( 1903 )

Candler, J.

On June 19, 1903, Davis presented to the judge of the superior courts of the Blue Ridge circuit a petition praying for an injunction against the Mayor and Council of Jasper, restraining the defendant from issuing and delivering to Tate certain bonds which he claimed should be issued and delivered to him. A rule nisi was issued by the judge, calling on the defendant to show cause why it should not be enjoined as prayed. The defendant filed an answer, and the case came on to be heard on Saturday, July 25, 1903. The judge took the case under advisement, and on Monday, July 27, at Marietta, Ga., he passed an order refusing the injunction prayed and vacating the temporary restraining order which had previously been passed. The order denying the injunction, it seems, was filed with the clerk of the superior court of Pickens county on July 28, and the plaintiff in error claims that on July 29, before his couusel could prepare and have signed a bill of exceptions to the denying of the injunction, and before it was possible for him to reach the judge to obtain an order superseding the order of July 27, the Mayor and Council of Jasper issued and delivered the bonds to Tate, who, it appears, had, on June 17, 1903, paid to the treasurer of the town of Jasper $3,091, the consideration for the bonds. The bill of exceptions now under consideration was signed by the trial judge bn August 5, 1903. On the call of the case in this court the defendant in error moved to dismiss the writ of error, on the ground that “ since the refusal of the injunction in said case by the court, to which the writ of error was taken, and.before the presentation of the bill of exceptions to the court, and before the certifying and filing thereof, the municipal bonds of the par value of three thousand dollars ($3,000.00), the subject-matter in controversy, the issuing and delivery of which plaintiff seeks by his petition to enjoin, were by the proper authorities, on the 29th day of July, 1903, issued and delivered to Tate, the purchaser thereof, and no supersedeas to the judgment of the court below was obtained, as provided by law.” The truth of the allegations made in the motion to dismiss was admitted by counsel for the plaintiff in error; but in answer to the motion an affidavit was filed, setting up that the defendant knew, or had reason to believe, that the plaintiff would file a bill of exceptions to the order, and that the bonds were issued and delivered to Tate before it was possible for him to reach the judge with an application for a supersedeas. Tate was not a party to the case, and, before the bill of exceptions was tendered to the court, the defendant had issued and delivered to him the bonds, which he had paid for on June 17, two days prior to the presentation to the judge of the original petition for injunction.

In Ambos v. Savannah etc. R. Co., 113 Ga. 1012, this court held that where it appeared that since the refusal of the application for temporary injunction by the court below, the defendant had done all the acts sought to be enjoined, no supersedeas having been granted, the writ of error would be dismissed. To the '•'same effect is the case of Gallaher v. Schneider, 110 Ga. 322. As was said in Benton v. Singleton, 114 Ga. 548, “In no case will the Supreme Court undertake to pass upon questions presented by a bill of exceptions when an adjudication of them, even though favorable to the plaintiff in error, could not possibly result in any practical benefit to him.” Why should we pass upon the question whether the bid of the plaintiff in error was the highest made for the bonds in question, or whether Tate’s offer was any bid at all, under the facts of this case, when it is admitted that Tate, who is not a party to the suit, has already paid for the bonds and has them in his possession ? See Henderson v. Hoppe, 103 Ga. 684. We do not pass upon any of the questions raised by the bill of exceptions, but, following a long line of decisions by this court, we are compelled to dismiss the writ of error, without prejudice to any of the rights of the plaintiff in error.

Writ of error dismissed.

All the Justices concur.