Shoaf v. Bland, 17720
| Decision Date | 13 February 1952 |
| Docket Number | No. 17720,17720 |
| Citation | 208 Ga. 709,69 S.E.2d 258 |
| Parties | SHOAF et al. v. BLAND et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. In so far as the bill of exceptions assigns as error the rulings on special demurrers, it is premature and will not be considered.
2. The judgment of the court below refusing to grant an interlocutory injunction, under the circumstances of this case, was not error.
The plaintiffs in error brought suit against Alonzo Bland and Mrs. Alonzo Bland in the Superior Court of DeKalb County, seeking to enjoin the operation of a kindergarten in the home of the defendants. It was alleged in the petition that all lots in the subdivision were conveyed subject to certain restrictive covenants; and that the defendants, by the operation of a kindergarten, were violating the restrictive covenants to which their lot was subject. The plaintiffs further alleged that the operation of a kindergarten by the defendants on the said lot violated the comprehensive zoning ordinance of DeKalb County. The prayers were for an interlocutory injunction prohibiting the continued operation of the kindergarten, and for other equitable relief.
The defendants filed general and special demurrers to the petition. The general demurrer was overruled. The special demurrers were sustained as to some paragraphs and overruled as to others. The defendants then filed an answer, admitting that they were residents of the county and that they were conducting a kindergarten at the place named in the petition. All other material allegations of the petition were denied. After a hearing, the judge of the court below denied the restraining order. The exceptions here are to the ruling sustaining certain special demurrers to the petition, and to the judgment denying the interlocutory injunction.
Gray Skelton, Harry F. Walters, Carter Goode, Edward D. Wheeler, all of Decatur, for plaintiffs in error.
James A. Mackay, Decatur, for defendants in error.
1. The first assignment of error in the bill of exceptions is on the sustaining of the special demurrers to two paragraphs of the petition, all other assignments based upon rulings on the special demurrers having been expressly abandoned. Code, § 6-701 provides: 'No cause shall be carried to the Supreme Court or Court of Appeals upon any bill of exceptions while the same is pending in the court below, unless the decision or judgment complained of, if it had been rendered as claimed by the plaintiff in error, would have been a final disposition of the cause or final as to some material party thereto * * *.' The proceeding now before us is an application for an interlocutory injunction, which was denied. It is not a final judgment within § 6-701. Nor are the rulings on the special demurrers a final judgment thereunder. However, in so far as the judgment denying an interlocutory injunction is concerned, a bill of exceptions to this court is authorized under Code, § 6-903, but there is no provision in that section for a review of rulings on special demurrers. See Cook County v. Thornhill Wagon Co., 186 Ga. 835, 199 S.E. 117, and cases there cited. The bill of exceptions in the instant case is, therefore, in so far as it assigns error on the rulings on special demurrer, premature, and will not be considered.
2. The plaintiffs in error at the interlocutory hearing abandoned the allegation that the activities of the defendants in error constituted an annoyance and a nuisance to the neighborhood. They also introduced no evidence as to the comprehensive zoning ordinance of DeKalb County alleged to have been violated, and no evidence as to its violation. The sole question remaining then is whether the operation of a kindergarten by the defendants in error in their home, located on a lot in the subdivision, constitutes a use of the lot for other than a solely residential lot in violation of the restrictive covenants to which the lot is subject.
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...home for developmentally disabled persons consistent with use limitation in a subdivision for "residential purposes"); Shoaf v. Bland, 208 Ga. 709, 69 S.E.2d 258 (1952) (kindergarten not inconsistent with lots used solely as "residential lots"); Gregory v. State Dep't of Mental Health, Reta......
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...which the property may be put to "residential purposes." Elder v. Watts, 252 Ga. 212, 312 S.E.2d 331 (1984). See also Shoaf v. Bland, 208 Ga. 709(2), 69 S.E.2d 258 (1952). Accordingly, activities of a commercial nature would not be permitted. See Taylor v. Smith, 221 Ga. 55(3), 142 S.E.2d 9......
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...Angels Day Care, Inc., 847 A.2d 838 (R.I.2004); Metzner v. Wojdyla, 125 Wash.2d 445, 886 P.2d 154 (1994). But see, Shoaf v. Bland, 208 Ga. 709, 69 S.E.2d 258 (1952); Stewart v. Jackson, 635 N.E.2d 186 (Ind.App.1994); Beverly Island Ass'n v. Zinger, 113 Mich.App. 322, 317 N.W.2d 611 (1982). ......
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