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DUCKWORTH, Chief Justice.
Accounting. Before Judge Roddenberry. Coffee Superior Court. April 11, 1956.
The test of a case as made by writ of error to the Supreme Court as to whether it is one in equity, and hence reviewable by the Supreme Court (Code, Ann., 23704), is not what it might have been at any given time during its pendency in the trial court, but what remained in it and is brought here for review. Matters eliminated either by the parties or by order of the trial court constitute no part of the case in the Supreme Court. Cochran v. Stephens, 155 Ga. 134 (116 S. E. 303); Coats v. Cases, 162 Ga. 236 (133 S. E. 237); Benton v. Benton, 164 Ga. 541, 543 (139 S. E. 68); Jones v. Pierce, 192 Ga. 217, 219 (14 S. E. 2d 739); Gilbert Hotel No. 22 v. Black, 192 Ga. 641 (16 S. E. 2d 435); Overstreet v. Schulman, 203 Ga. 284 (46 S. E. 2d 344); Anagnostis v. Alexandrou, 203 Ga. 752 (48 S. E. 2d 521).
The only equity the case ever had was prayers for injunctive relief. These were effectively and completely eliminated in the modification order and, in so far as plaintiff's prayers were concerned, by the consent order entered January 12, 1949, expressly dissolving the only injunctive order issued in its favor, to which no exception was taken. There is no basis for an equitable accounting under Code 37-301, and none was 'sought. And the final order denying an injunction does not make the case one in equity, since this was surplusage under the earlier consent degree. See Gormley v. Slicer, 178 Ga. 85 (172 S. E. 21). Thus the case is now one purely of law, and consequently the Court of Appeals and not this court has jurisdiction. See Rabun v. Wynn, 211 Ga. 446 (86 S. E. 2d 305); Simonton Construction Co. v. Pope, 212 Ga. 456 (93 S. E. 2d 712).
Douglas-Guardian Warehouse Corporation sued C. N. and W. C. Todd, alleging unlawful entry by defendants without the knowledge of plaintiff into the public warehouse of plaintiff, and taking and removing therefrom valuable property, the amounts and values unknown to plaintiff, and an indebtedness to plaintiff in a stated amount. The prayers were for an injunction restraining the entry into plaintiff's warehouse, interference with plaintiff using the same, and for a judgment for the amount alleged to be owing to plaintiff by defendants. Defendant W. C. Todd answered, denying generally all allegations against him. Defendant C. N. Todd answered, denying generally unlawful entry, removal of property, or indebtedness as alleged. He also filed a cross-action, alleging that the plaintiff held property belonging to him with a stated value, and prayed for a judgment against plaintiff for that amount. He also prayed that plaintiff be enjoined from selling said property, and that a restraining order, dated December 9, 1948, be set aside and interlocutory injunction be denied, and that plaintiff be enjoined from retaining possession of property belonging to Todd Milling Company plant, building or property mentioned in the suit, or from asserting possession or right to possess any of the property stored.
On December 11, 1948, the court entered an order, which was never excepted to and is now the law of the case. Said order, reciting that plaintiff had stated to the court that it had removed from Sections B, C, and D into Section A of the warehouse, the goods stored by it under the contracts, and consents that the order granted on December 9, 1948, be modified so as to release for defendants Sections B, C, and D of the warehouse, for any purpose they may wish to use it. Thereupon the court ordered that the earlier order be modified, so that all. of the warehouse premises except Section A is released to defendants, so that said order as thus modified shall restrain defendants from entering Section A or removing goods therefrom, or molesting plaintiff and its agents in the operation of the warehouse.
On January 12, 1949, the court entered a further order, which is not excepted to and is now final. That order recites that all parties consented thereto, and it provides that, if the sum of $1,625.95, the amount plaintiff sued for, be deposited in court by January 15, 1949, then the injunctive order of December 9, 1948, as modified December 11, 1948, be vacated and set aside; that if said sum is not so deposited, then if a deposit of $1,822.91 be made into the registry of the court by January 31, 1949, said previous restraining orders be vacated and set aside; that either deposit shall release the Warehouse lien; and the order further provided for crediting withdraWals of stored property by defendants according to a memorandum of values filed by the court; and such payments shall entitle defendants to withdraw all property stored with plaintiff, and upon delivery thereof by plaintiff, there shall be no further obligation resting upon either party respecting the contracts which form the basis for this action; and upon final trial the funds so deposited shall be disbursed by the court. The receipt of the clerk in this record shows that $1,625.95 was deposited by defendants on January 15, 1949, as required by the court's consent order of January 12, 1949.
Thereafter, the case Was referred to an auditor, and to the judgment overruling plaintiff's exceptions of law and exceptions of fact, and to the final judgment in favor of the defendants for $27,202.70 the plaintiff excepts.
Lippitt & Lippitt, R. A. Moore, contra.
G. H. Mingledorff, Gibson & Maddox, Larry E. Pedrick, Bennett, Pedrick & Bennett, for plaintiff in error.
Saturday May 23 01:43 EDT

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