Bainbridge Farm Co. v. Ball , 165 Ga. 582 ( 1928 )

ON MOTION EOR REHEARING.

Hines, J.

The plaintiffs in error made a motion for rehearing, on. the ground that we overlooked a material fact and a material issue of law involved in the case. The issue of law is that the court below ruled that the timber on lot 190, and embraced in the enclosure fenced with woven wire, was not excluded from the lease, and that to this ruling the plaintiffs in error excepted. We did not overlook the fact that counsel for the plaintiffs in error made this contention in their briefs; but we • were of the opinion that the bill of exceptions di.d not properly allege that the court made this ruling, and did not assign error thereon. The bill of exceptions did not allege that the court made this ruling, and did not plainly and distinctly assign any error thereon, if the court had so ruled. This court will not consider assignments of error which do not plainly and distinctly state the rulings to which a party excepts and do not plainly and distinctly assign errors thereon. In the present case the trial judge, after hearing the evidence and argument upon the application of the plaintiffs for injunction, and upon the application of the defendants in their answer for injunction against the plaintiffs, passed an order revoking the temporary restraining order ¡oreviously granted against the defendants, restrained the plaintiffs from further working the seventy trees within the fenced field on lot 212, and restrained the defendants from bringing any further suits growing out of the pending cause. To this judgment as a whole the plaintiffs excepted on the grounds, (1) that it was contrary to law, .and not warranted by the facts; and (2) that the court refused to restrain the plaintiffs from working the timber upon the lots embraced in the lease of less size than eight inches, eighteen inches from the ground. They excepted specially upon the grounds, that (1) “the court refused to enjoin plaintiffs from working, cupping, and using the timber in the enclosure on lot 190,” and (2) that the order of the court restrained “defendants from bringing any further suit growing out of this cause pending this suit.” Tt will thus be seen that the plaintiffs in error did not allege that the court construed this lease as not excepting the timber embraced in this enclosure on lot 190, and did not plainly and distinctly assign error on such ruling. . In their briefs counsel for the plaintiffs in error contend that as the judge enjoined the plaintiffs from further working the seventy trees on lot 212, and did not enjoin them from working the timber in the enclosure on lot 190, the inference is that he held that the timber within the enclosure on lot 190 was not excepted from the operation of the lease. As the bill of exceptions0 does not allege such ruling by the court, and does not assign error on any such ruling, but simply assigns error upon the failure of the court to restrain the plaintiffs from cutting timber within the enclosure on lot 190, we are of the opinion that the bill of exceptions does not plainly and distinctly state that the court made this ruling, and does not plainly and distinctly assign error on such ruling; and while we are of the opinion that under the lease and the evidence the timber within this enclosure was excepted from the lease, we do not think that the assignment of error in the bill of exceptions raised the issue contended for by counsel for the plaintiffs in error in their briefs. For this reason we did not consider this contention in the opinion rendered in this case; and we overrule the motion for rehearing.