Opinion
18327, 18340.
SUBMITTED SEPTEMBER 14, 1953.
DECIDED OCTOBER 14, 1953.
Injunction. Before Judge Thomas. Bacon Superior Court. June 23, 1953.
No appearance for plaintiff in error.
R. E. Lawson, contra.
1. Counsel for plaintiff in error in the main bill of exceptions having failed to argue their case orally in the Supreme Court, or to file any brief therein, the main bill of exceptions must be dismissed.
2. The cross-bill of exceptions filed by the defendants in error on July 15, 1953, assigning error on the judgment that was rendered on June 23, 1953, denying their motion to dismiss, to which judgment the defendants in error did not file any exceptions pendente lite, presents no question for decision.
SUBMITTED SEPTEMBER 14, 1953 — DECIDED OCTOBER 14, 1953.
On June 20, 1953, Lonnie Varnadore and another filed in Bacon Superior Court, against Paul Hayden, ordinary, a petition seeking to enjoin the defendant from publishing the results of a special election that had been called for June 20, for the purpose of nullifying a previous election authorizing the sale of alcoholic beverages. The petition was presented to the Judge of the Superior Court of Bacon County on June 19, at which time a restraining order was issued, which stated that a hearing on the writ of injunction "had been fixed for the 22d day of June, 1953, at 2 o'clock p. m., in the courthouse in Ware County." So far as appears from the record nothing was done on the latter date, but on June 23 the defendant was present in Bacon Superior Court for the sole purpose of listening to the trial of another case. While so present the instant case was sounded, whereupon the attorney for petitioners moved the court that they be allowed to dismiss their petition, which motion was denied. The court asked the defendant if he wished to file an answer, and he said, "No." Thereupon the court entered a judgment granting the prayers of the petition and declaring the election to be void. The defendant excepted to this judgment. The petitioners filed a cross-bill of exceptions assigning error on the final judgment and also because they were refused the right to dismiss their petition.
1. Counsel for the plaintiff in error in the main bill of exceptions failed to argue their case orally in the Supreme Court, or to file any brief therein, and therefore the main bill must be dismissed. Vann v. Wardlaw, 180 Ga. 573 (3) ( 179 S.E. 726).
2. Irrespective of whether the present case falls within the general rule that, where the main bill of exceptions is dismissed for want of prosecution in the Supreme Court, the cross-bill will be dismissed (Code § 6-901; Futch v. Olmstead, 172 Ga. 233 (2), 157 S.E. 277; Alexander Lumber Co. v. Bagley, 184 Ga. 352, 364 (2), 191 S.E. 446; Church v. Purcell, 186 Ga. 95, 196 S.E. 806), each of the judgments complained of was rendered on June 23, 1953, and the defendants in error did not file any exceptions pendente lite. The plaintiff in error filed a bill of exceptions based on the judgment granting an injunction, which was served on the defendants in error on July 2, 1953. In such circumstances, a cross-bill of exceptions filed by the defendants in error on July 15, 1953, assigning error on the judgment denying their motion to dismiss their petition, and on the judgment granting an injunction, though filed within 20 days from the date of the service of the main bill of exceptions, presents no question for decision. This is true for the reason that one who files a cross-bill of exceptions is not relieved from the requirements, as to proper and timely exceptions pendente lite, which would have been imposed upon him if he had been the plaintiff in error in a main bill of exceptions. Williams v. Ragsdale, 205 Ga. 274, 279 (4) ( 53 S.E.2d 339), and citations.
Writs of error dismissed. All the Justices concur.