Summary
In Peoples v. Bass, 211 Ga. 802 (89 S.E.2d 171), a temporary restraining order was entered pending the hearing of the cause, but the general demurrers to the petition were later sustained and the petition was dismissed, the exception before the court being merely to that judgment.
Summary of this case from Pinkard v. MendelOpinion
19024.
SUBMITTED JULY 12, 1955.
DECIDED SEPTEMBER 12, 1955.
Declaratory judgment. Before Judge Fort. Muscogee Superior Court. May 6, 1955.
Dan S. Beeland, Ernest C. Britton, for plaintiff in error.
Roy S. Levinson, Paul Blanchard, contra.
1. In section 2 of the Declaratory Judgments Act (Ga. L. 1945, p. 137; Code, Ann. Supp., § 110-1102), it is declared in part: "The court, in order to maintain the status pending the adjudication of the questions or to preserve equitable rights, may grant injunction and other interlocutory extraordinary relief, in substantially the manner and under the same rules as apply in equity cases." A temporary restraining order granted to maintain the status pending an adjudication of the question presented, under the foregoing section, does not make an action an equitable one within the meaning of our Constitution, art. VI, sec. II, par. IV (Code, Ann., § 2-3704). Milwaukee Mechanics' Ins. Co. v. Davis, 204 Ga. 67 ( 48 S.E.2d 876); Findley v. City of Vidalia, 204 Ga. 279 ( 49 S.E.2d 658); Georgia Casualty c. Co. v. Turner, 208 Ga. 782 ( 60 S.E.2d 771).
2. The petition in the present case is based on one legal question, and if properly made, this question stands for determination under fixed rules of law. "Title to land," as referred to in the constitutional provision hereinabove referred to, is not involved. The case, therefore, is within the jurisdiction of the Court of Appeals, and not the Supreme Court. Radcliffe v. Jones, 174 Ga. 324 ( 162 S.E. 679); Spence v. Miller, 176 Ga. 96 ( 167 S.E. 188); Lewis v. Fry, 194 Ga. 842 ( 22 S.E.2d 817); Bond v. Ray, 207 Ga. 559, 561 ( 63 S.E.2d 399).
Transferred to the Court of Appeals. All the Justices concur.
SUBMITTED JULY 12, 1955 — DECIDED SEPTEMBER 12, 1955.
Harold Peoples filed an action for a declaratory judgment against Mrs. Mary Nell Bass. It is alleged: Dewey Peoples and Mrs. Mary Nell Peoples (now Bass) were legally divorced in 1950, and pursuant to an alimony decree and judgment the defendant has caused to be placed upon the execution docket a fi. fa. in the amount of $1,282.50. In September, 1949, the petitioner's brother, Dewey Peoples, was the owner of an equity in described real estate. Dewey Peoples and Mary Nell Peoples agreed that, if the petitioner would pay off indebtedness in stated sums, Dewey Peoples would convey his equity to the petitioner. At the time of the agreement, Dewey Peoples and the defendant were living in the house as man and wife, and after making the agreement with the petitioner they moved away, and the petitioner took possession of the premises. He has complied with his agreement and has paid the indebtedness, and on August 23, 1953, his brother executed a warranty deed conveying to him the property described. Shortly after the recording of the deed, the defendant had the execution issued and recorded on September 23, 1953. The petitioner contends that, having complied with the terms of the agreement, he is vested with the title to the property free of the judgment for alimony. The defendant is threatening to have a levy made upon the petitioner's property to collect the amount of the execution, and she will cause a levy to be made unless she is restrained from doing so. In order to preserve the rights of the petitioner and the present status, the court should grant a restraining order, restraining the defendant from causing a levy to be made, or otherwise interfering with his possession, pending an adjudication.
The prayers were: for process; that the defendant be restrained from causing a levy to be made on the property or in any wise changing the status; that the court enter a judgment declaring the petitioner to be the owner of the property, clear and free of any lien or fi. fa. in favor of the defendant; and for other relief.
The court passed an order restraining the defendant until the hearing of the cause, and requiring her to appear and plead. The defendant's general demurrers to the petition were sustained, and the exception is to that judgment.
The bill of exceptions recites: "The Supreme Court of Georgia has jurisdiction of this case for the reason that it is a case in equity and involves the title to land and has therein a request for an injunction."