Opinion
16964.
FEBRUARY 16, 1950.
Injunction. Before Judge Harper. Stewart Superior Court. November 2, 1949.
Dykes Dykes and T. T. Molnar, for plaintiff in error.
G. Y. Harrell and R. S. Wimberly, contra.
A judgment sustaining a demurrer to a motion to modify and construe a purported injunctive order, which order has been suspended, and has not been reinstated except by inference or implication, is not subject to review by this court, and the writ of error must be dismissed.
No. 16964. FEBRUARY 16, 1950.
C. B. Harbuck filed a petition to enjoin an alleged nuisance. The trial resulted in a verdict and judgment for the defendants. Harbuck's motion for new trial was overruled, and on review this judgment was reversed ( Harbuck v. Richland Box Co., 204 Ga. 352, 49 S.E.2d 883). Prior to the order making the judgment of this court the judgment of the trial court, the defendants amended their answer.
On May 30, 1949, Harbuck filed a second petition against Richland Box Company, the City of Richland, and Georgia Power Company, praying that the defendants be restrained and enjoined from maintaining obstructions and a nuisance in a public street, that an ordinance by the City of Richland, purporting to abandon a public street, be declared null and void, and that the plaintiff have judgment for damages in the sum of $2000. A rule nisi was granted, requiring the defendants to show cause, on June 16, 1949, why the prayers of the petition should not be granted. Richland Box Company filed an answer. On August 16, 1949, the judge of the superior court enjoined Georgia Power Company, Richland Box Company, and the City of Richland "from obstructing the street described in the petition, or from maintaining any obstruction thereon."
On October 17, 1949, during the October term of the Superior Court of Stewart County, the court passed an order consolidating the two cases filed by Harbuck. The bill of exceptions recites that the case was continued at the October term by the plaintiff over the objection of the defendant, Richland Box Company. Thereafter Richland Box Company filed a motion praying that the temporary injunction granted on August 16, 1949, be dissolved or modified to permit the defendant "effective and unmolested operation of its business until the case can be tried," and, should the injunction be continued, that the plaintiff be required to furnish a good and sufficient bond to answer any judgment that Richland Box Company might obtain against the plaintiff, and that the words "maintaining any obstruction" be construed by the court. On this motion the court passed the following order: "It is hereby ordered that C. B. Harbuck, plaintiff in the above-stated case, show cause, before me at the Courthouse in Americus, Georgia, at 2 o'clock p. m., on October 27, 1949, why the motions made by defendants should not be granted, and the temporary injunction be vacated, and until that date, and until the further order of this Court, the provisions of the temporary injunction, dated August 16, 1949, are suspended. At Chambers, this 21st day of October 1949. W. M. Harper J. S.C. S.W. C."
On October 27, 1949, the plaintiff Harbuck filed general and special demurrers to the motion to modify and construe, and on November 2, 1949, the court passed an order sustaining the general demurrers, as follows: "In the above-stated cause, the defendants filed a motion to dissolve or modify the interlocutory injunction dated August 16th, 1949, to which motion the plaintiff filed and urged a demurrer upon general and special grounds, and after a hearing upon said motion, it is now considered, ordered and adjudged that the general grounds of plaintiff's demurrer be and the same are hereby sustained, and, accordingly, said motion so filed by defendants is hereby dismissed. This November 2d 1949 ."
The exception is to the judgment sustaining the general demurrers of the plaintiff to the defendant's motion to vacate, modify, or construe.
The judgment of the court on August 16, 1949, granting an interlocutory injunction, was suspended by the order of the court requiring the plaintiff to show cause, on October 27, 1949, why the motion of the defendant to vacate, modify or construe should not be granted. It was ordered that "until that date and until the further order of this court, the provisions of the temporary injunction, dated August 16, 1949, are suspended." (Italics ours.) In the order of November 2, 1949, sustaining the plaintiff's general demurrers to the defendant's motion to vacate, modify, or construe, no reference is made by the trial judge to the previous temporary injunction granted on August 16, 1949, and suspended on October 21, 1949. The most that can be contended by either the plaintiff or the defendant would be that by inference or implication the order sustaining the plaintiff's general demurrers to the defendant's motion to modify or construe had the effect of reinstating the previous temporary injunction, which had been suspended "until the further order of the court."
"There can be no order or judgment by inference or implication that can be the subject of review by an appellate court." Putnam Mills Power Co. v. Stonecypher, 151 Ga. 14 ( 106 S.E. 87); Bradfield v. Abercrombie, 151 Ga. 401 ( 107 S.E. 45); Touchton v. Henderson, 158 Ga. 819 ( 124 S.E. 529); James v. Wilkerson, 164 Ga. 149, 150 ( 138 S.E. 71); Williams v. Roberts, 169 Ga. 226 ( 150 S.E. 85); Wofford Oil Co. v. Nashville, 177 Ga. 461 ( 170 S.E. 369); Druggists Co-Op. Ice Cream Inc. v. Cravey, 183 Ga. 373, 375 ( 188 S.E. 541); Jones v. Graham, 187 Ga. 622 ( 1 S.E.2d 635); Adams v. Macon, 204 Ga. 1, 3 ( 48 S.E.2d 829).
The order passed by the trial judge on the demurrers of the plaintiff did not by express terms reinstate the temporary restraining order previously granted, and the record contains no separate or additional order reinstating the previous restraining order. Without a judgment by the court expressly reinstating the previous restraining order, the petition was left pending with no restraining order or injunction. This court will not review an application to modify or construe an injunction which can have an existence only by inference or implication. It follows that the writ of error must be dismissed.
Counsel for the plaintiff (defendant in error in this court) insist in their brief that an order by the trial court sustaining a demurrer to a motion to vacate or modify a previous restraining order is not such a final judgment as may be reviewed by this court. A ruling on this contention is not required, but, in this connection, see Smith v. Wills, 107 Ga. 792 ( 33 S.E. 667); Vare v. Bank of Powder Springs, 154 Ga. 182 ( 113 S.E. 696); Pennington v. Macon County Bank, 156 Ga. 767 (120 S.E.
107); Taylor v. Cleghorn Brothers, 178 Ga. 765 ( 174 S.E. 239); Hitchcock v. Hamilton, 184 Ga. 700 ( 192 S.E. 726); Jones v. Graham, supra; Adams v. Macon, supra.
Writ of error dismissed. All the Justices concur.