Opinion
17287.
NOVEMBER 13, 1950.
Injunction. Before Judge Guess. DeKalb Superior Court. August 14, 1950.
G. S. Peck, for plaintiff in error.
Julius A. McCurdy, contra.
1. "The losing party to a judgment on general demurrer is given the option to sue out a direct bill of exceptions assigning error on the judgment, or to have certified and filed exceptions pendente lite. If the latter course be followed, the ruling on demurrer becomes a pendente lite ruling which is reviewable only after the termination of the case, on exceptions taken to the final judgment rendered therein. Civil Code (1910), § 6138 [now Code, § 6-701]." Durrence v. Waters, 140 Ga. 762 ( 79 S.E. 841); Smith v. Barksdale, 199 Ga. 723 ( 35 S.E.2d 149); Story v. City of Macon, 203 Ga. 105 ( 45 S.E.2d 196); Simpson v. Simpson, 204 Ga. 344, 345 ( 49 S.E.2d 898).
( a) No ruling can be made in the present case on the assignments of error on exceptions pendente lite.
2. In the grant or refusal of interlocutory injunctions, the trial judge is vested with a wide discretion, which will not be controlled by this court unless abused. Where, as in this case, the plaintiff alleges that it is necessary to take property of the defendant for the construction of a sewer line, and the defendant by his cross-action asserts that there is no necessity for the taking, and the application for interlocutory injunction is considered solely upon the pleadings, this court will not hold that the trial judge abused the discretion vested in him in denying the application for injunction.
Judgment affirmed. All the Justices concur.
No. 17287. NOVEMBER 13, 1950.
DeKalb County filed a petition under the provisions of the Code, Chapter 36-11, as amended by the act of 1937-38 (Ga. L. 1937-38, pp. 251-255), seeking to condemn a right of way for a sewer line over the property of Harry Verner. The defendant filed an answer in the nature of a cross-action, in which he alleged that "there is no necessity that said sewer line be built through the property of this defendant." He prayed that the condemnation proceedings be temporarily and permanently restrained and enjoined until the issues made by the cross-action could be determined, and for other relief. His application for interlocutory injunction (considered solely on the pleadings) was denied. He excepted to the order denying the injunction. In his bill of exceptions he assigned error on his exceptions pendente lite, which excepted to a judgment overruling his demurrers, and to the order sustaining the demurrers, as renewed, to his cross-action, as amended. His exceptions pendente lite also assigned as error the refusal of the court to grant his application for a supersedeas to the order denying the interlocutory injunction, and to the orders excluding certain documentary evidence on the hearing of the application for supersedeas.