Kirtland v. Mayor of Macon

Bleckley, Justice.

1. The motion to dismiss the writ of error must be denied. The theory of the motion is, that there being no restraining order or other obstacle to the making of the deed and the deed having been lawfully made after the bill of exceptions was signed, the mischief sought to be prevented by the injunction prayed for has been accomplished, and, therefore, that a reversal of the judgment denying the injunction would be fruitless. This court .knows nothing of the making of the deed from the record before it, or from the bill of exceptions. The fact is verified alone by an affidavit of the counsel for the defendant in error, and to turn a case out of court upon a mere affidavit of the adverse counsel, touching a matter in pais, would be a novelty in practice. The only case, so far as we are aware,- in which a writ of error has been dismissed for an act of one of the parties, done after the bill of exceptions was signed, is reported in 32 Ga., 190, and there was more than an affidavit in that case to verify the act; there was record evidence from another court. I will add, that, in my opinion, the ruling in that case is open to grave criticism, so much so that its range as a precedent should be confined to cases strictly parallel. The general rule is that a writ of error looks to the state of things existing at the time the judgment complained of was rendered, and that what may have transpired since the writ was brought is of no consequence. Exceptions there are, such as settlements or compromises, etc., but the exceptions are not numerous.

2. Injunction ad interim is a part of equity police. It is a device to keep the parties in order, and prevent one from hurting the other whilst their respective rights are under adjudication. There is often a cry for the police when there is no real danger. The equity of a bill is not lost because an injunction is denied, or because it is not applied for before the final hearing. Acts done pendente lite cannot obstruct the court in granting an injunction properly moulded, or in decreeing other appropriate relief, in the end. Such acts may be brought into the bill by amendment (Code, §1181), and parties will commit them at their peril. A deed made pending the bill may be canceled by the decree, or compensation in damages may be awarded. "Where there is no insolvency, irreparable injury is of rare occurrence, and insolvency in the present case is not alleged.

3. The injunction prayed for is simply to restrain the municipal authorities from making a deed of conveyance. Grant that the bill has equity, the injunction will be in time when a final decree is rendered. If, in the meantime, a deed has been or should be made, it can be set aside and a perpetual injunction be granted against the execution of any conveyance in future. It follows that whatever may be the rights of the respective parties on a trial of the cause, there was no abuse of discretion in denying a temporary injunction.

Judgment affirmed.