65 S.E.2d 905

ABNEY v. HARRIS.

17501.Supreme Court of Georgia.ARGUED JUNE 11, 1951.
DECIDED JULY 9, 1951.

1. There is no merit in any of the grounds of the motion to dismiss the bill of exceptions in this court.

2. The judgment of the court below sustaining a motion by the defendant to dismiss the attachment for contempt filed by the plaintiff was not error.

3. The judgment of the court below overruling a motion by the plaintiff to require the defendant to provide a bond in connection with the motion for new trial and the supersedeas granted therein was error and must be reversed.

No. 17501. ARGUED JUNE 11, 1951 — DECIDED JULY 9, 1951.
Injunction — contempt. Before Judge McClure. Chattooga Superior Court. April 23, 1951.

D. A. Abney filed a suit for injunction and for specific performance in the Superior Court of Chattooga County against L. A. Harris. On the date the suit was filed, May 31, 1950, the judge of the superior court granted a temporary restraining order, restraining the defendant from entering on the described land and from installing certain individual speakers, and from otherwise interfering with the right of the plaintiff to use and occupy the land. Thereafter, a trial was had before the court and a jury. The jury found in favor of the plaintiff both for injunction and specific performance, and judgment was entered thereon. A motion for new trial was filed by the defendant, and the court issued a rule nisi and provided that the order should act as a supersedeas until further order of the court.

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The motion for new trial is still pending in the court below.

On April 12, 1951, the plaintiff filed a motion asking the court to require the defendant to provide a bond to preserve and protect the rights of the plaintiff in connection with the motion for new trial and the supersedeas granted by the court therein, or that the court vacate the supersedeas order altogether. This motion was considered and overruled by the judge during the term of court at which the judgment was rendered.

On April 4, 1951, the plaintiff filed an application for attachment against the defendant, asking that the defendant be punished for contempt for violating and disobeying the order and judgment of the court enjoining and restraining the defendant, and alleging that, while the same was in full force and effect, defendant wilfully disregarded and disobeyed the same by entering upon the property and placing improvements thereon. When the application came on to be heard on April 23, 1951, the defendant filed a motion to dismiss the application for attachment upon the grounds, that the temporary restraining order had expired on January 24, 1951, when a decree was entered in the case, and that the decree was superseded by the order of the court dated February 6, 1951; and that the court was without power or jurisdiction to hold the defendant in contempt of court. The motion to dismiss was sustained by the court, and the application for attachment was dismissed and stricken.

Plaintiff excepted to the order of the trial judge overruling the motion that the defendant be required to provide a bond, and to the order striking and dismissing the application for attachment filed by the plaintiff, and error is assigned thereon.

Earl B. Self, Thomas J. Espy, Walter B. Shaw, Fariss Fariss, for plaintiff.

Brinson Davis, for defendant.

WYATT, Justice.

1. Defendant in error makes a motion to dismiss the writ of error in this court on three grounds. The first ground is that the plaintiff’s application for attachment is for criminal contempt, to which the State of Georgia is a necessary party, and since the State of Georgia is not a party to the bill of exceptions, it should be dismissed. The attachment for contempt in the instant case is for the purpose of

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compelling obedience to an order for the benefit of a party litigant, and not for disrespectful or contumacious conduct towards the court. It is, therefore, civil rather than criminal contempt, and the State of Georgia is not a necessary party to the bill of exceptions. See Davis v. Davis, 138 Ga. 8
(74 S.E. 830), and Jones v. State, 166 Ga. 553
(144 S.E. 106). There is no merit in this ground.

2. The second ground of the motion to dismiss is that the order of the court below refusing to hold the defendant in contempt is not a final judgment such as can be made the subject of a bill of exceptions. This ground is without merit. Se Davis v. Davis, supra; Stokes v. Stokes, 126 Ga. 804
(55 S.E. 1023); Gray v. Gray, 127 Ga. 345 (56 S.E. 438) Pettitt v. Henson, 50 Ga. App. 196 (177 S.E. 355).

3. The third ground of the motion to dismiss is that the order of the court below overruling the motion of the plaintiff to require the defendant to provide a bond or to vacate the supersedeas altogether is not such a final judgment as can be made the basis of a bill of exceptions to this court. For reasons that will appear hereafter in the opinion, this contention is without merit.

4. Plaintiff in error contends that the order of the court below sustaining the motion of the defendant in error to dismiss the attachment for contempt was error, for the reason that the acts of the defendant in error complained of violated the temporary restraining order and the permanent injunction granted the plaintiff in error as a result of the trial in this case. There is no merit in this contention. In the instant case, the plaintiff in error filed his petition seeking, among other things, an injunction. The judge granted a temporary restraining order “until further order of the court.” “On a hearing had under a rule nisi the judge should not grant a perpetual or permanent injunction, but only one of an ad interim character, to remain of force until the final trial.” Southern Cotton Oil Co. v Overby, 136 Ga. 69 (70 S.E. 664). See also Brown v Smith, 150 Ga. 111 (102 S.E. 813); Pig’n Whistle Sandwich Shops v. Keith, 167 Ga. 735 (146 S.E. 455); Payton v Ford, 134 Ga. 587 (68 S.E. 300); Powell v. Parker, 38 Ga. 644. Under the rulings in the above-cited cases, a temporary restraining order or interlocutory

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injunction is effective only until there can be a final trial of the case. It follows, the temporary restraining order has been terminated by the trial in the instant case, and the defendant in error can not be held in contempt for violating that order.

Neither can the defendant be held in contempt for violating the permanent injunction granted as a result of the trial. That judgment has been superseded by an order of the court. “The general rule is that a supersedeas suspends all further proceedings in the suit in which the judgment superseded is rendered, such as are based upon and relate to the carrying into effect of that judgment. . . Under this rule, the supersedeas, during its pendency, prevents any steps to enforce or carry into effect the judgment.” Town of Fairburn v. Brantley, 161 Ga. 199
(130 S.E. 67). See also Barnett v. Strain, 153 Ga. 43
(111 S.E. 574). It follows, the judgment of the court below dismissing the attachment for contempt was not error.

5. (a) We are confronted in this case with the question whether or not, on a motion for new trial filed by the losing party, the grant of a supersedeas without a bond or other order to preserve the status quo, or any other provision to protect the interest of the party prevailing before the jury, is such a judgment as can be made the subject of a bill of exceptions, when the motion for new trial is still pending in the trial court. Power v. Baker, 112 U.S. 710 (5 Sup. Ct. 361, 28 L. ed. 825), was a case in which the Supreme Court of the United States considered a bill of exceptions to a judgment refusing to vacate a supersedeas. No other question seems to have been involved Biggers v. Hope, 176 Ga. 141 (167 S.E. 176), was a case in which this court reviewed exceptions to the grant of a supersedeas. Harris v. Barfield Music House, 147 Ga. 321
(93 S.E. 876), was a case in which this court considered a bill of exceptions on the question of the sufficiency of a supersedeas bond. We find no case in this or any other jurisdiction where the facts are identical with those in the instant case. We consider the above-cited cases physical precedents sufficient to hold that, under the peculiar facts of this case, the judgment complained of is one that can be brought to this court by a direct bill of exceptions while the motion for new trial is pending in the trial court.

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(b) The next question presented by the bill of exceptions in the instant case is the judgment of the court below dismissing plaintiff’s motion to require the defendant to provide a bond in connection with the supersedeas order. Our Code, § 6-1002, provides: “The bill of exceptions thus filed shall operate as a supersedeas upon the plaintiff in error complying with the following terms: 1. In a civil cause the party shall, on or before filing the bill of exceptions, pay all costs, and, by himself, his agent, or his attorney in fact or at law, give bond with good security, payable to the opposite party, and conditioned for the payment of the eventual condemnation money and all subsequent costs, which bond shall be attested and approved by the said clerk. If such bond shall be filed, and all cost then accrued paid, subsequently to the filing of the bill of exceptions, provided the same shall be done within 10 days after such bill of exceptions is filed, further proceedings under the judgment shall be stayed until a decision is had upon the bill of exceptions.” “A rule nisi for a new trial shall not operate as a supersedeas, unless so ordered by the court, in which case the court may require a bond and security for the eventual condemnation money, when the exigency of the case requires it.” Code, § 70-307. “When any hearing shall take place in conformity to the rules of law for granting and dissolving injunctions, the judge may grant or refuse said injunction on the terms the law requires; and either party may have a writ of error to the Supreme Court from such decision, upon complying with the law appertaining to the same; but no such writ of error nor any proceeding for obtaining the same, shall have the effect of establishing or denying an injunction independently of the order of the judge, who shall, on rendering the decision or in granting the writ of error, make such order and require such bond as may be necessary to preserve and protect the rights of the parties until the judgment of the Supreme Court can be had thereon, which he shall do as well in cases of refusal as of granting an injunction.” § 55-202.

This court, in Gustoso Cigar Co. v. Ray, 117 Ga. 565
(43 S.E. 984), said: “The policy of the law is against allowing the status to be changed until the final termination of a case in the court of last resort, and notice of certiorari, appeal bonds, counter-affidavits

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and bonds, filing bills of exception under the Civil Code, § 5552, perform the office of a supersedeas without the intervention of the judge. Under the Civil Code, § 4925 the chancellor is expressly authorized in injunction cases, to grant such order and require such bond as may be necessary to preserve and protect the rights of the parties until final judgment. A supersedeas is either a matter of statutory right, or vested in the discretion of the judge of the superior court under the Civil Code, § 4321. There may be instances in which it would be necessary to mold and frame the order of supersedeas so as to meet the exigencies of the case, the general principle being that the losing party has the right, on giving bond and security, to maintain the status until the return of the remittitur from the Supreme Court.” See Marks v. Hertz, 65 Ga. 119.

Again, in Brandon v. Brandon, 154 Ga. 661
(115 S.E. 115), this court said: “When the court below announced its decision awarding the child to the mother, who resides in Ohio, and who was temporarily in Georgia to attend the trial of this proceeding, counsel for the defendant requested the court to pass such order of supersedeas as would preserve the status, until the decision could be reviewed. This the court refused, and error was assigned on this ruling. `The policy of the law is against allowing the status to be changed until the final termination of a case in the court of last resort.’ Gustoso Cigar Mfg. Co. v Ray, 117 Ga. 565 (43 S.E. 984). The proper practice, in a case where irreparable injury may result, by carrying the judgment instantly into effect is, upon notice being given to the court that a bill of exceptions will be filed, to allow a reasonable time for this to be done, before the judgment is carried into effect. Lindsey v. Lindsey, 14 Ga. 657. The court erred in permitting the immediate execution of its judgment awarding the custody of this child, pending appeal, to the mother who lived out of this State.” See Tift v. Atlantic Coast Line R. Co., 161 Ga. 432, 447 (131 S.E. 46).

In the instant case, the trial judge by granting a supersedeas without requiring a bond or making other provision to preserve the status quo, effectively deprived the plaintiff in error of the fruits of his victory. This was clearly error.

Judgment reversed in part, and affirmed in part. All the Justices concur.

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