Finch v. City of Atlanta, 28897

• Decision Date: 18 June 1974
• Docket Number: No. 28897,28897
• Citation: 232 Ga. 415,207 S.E.2d 46
• Parties: George FINCH, Jr. v. CITY OF ATLANTA.
• Court: Georgia Supreme Court

Page 46

207 S.E.2d 46

232 Ga. 415

George FINCH, Jr. v. CITY OF ATLANTA.

No. 28897.

Supreme Court of Georgia.

June 18, 1974.

George G. Finch, Atlanta, for appellant.

James H. Weeks, Henry L. Bowden, Ralph H. Witt, Atlanta, for appellee.

Syllabus Opinion by the Court

UNDERCOFLER, Justice.

George Finch, Jr., brought this equitable action to enjoin the City of Atlanta from prosecuting him for violating its zoning ordinance in maintaining a multi-family dwelling in a single family area. He contended the city's attempt to enforce the ordinance is illegal because it is doing so selectively and discriminatorily. He shows that there are numerous violations of this provision of the ordinance in this area and these violations have existed for many years but that he is the only person against whom enforcement has been attempted. He was cited and convicted of such violation in the Atlanta Municipal Court on May 3, 1972. This case is on appeal. He was again cited for three separate such violations on November 29, 1972. These cases have not been tried. The present petition was filed on November 26, 1973. There are no allegations or evidence that petitioner has been deprived of any use of his property or has been prevented from enjoying his rights therein. Upon an interlocutory hearing the trial court dismissed the petition. Held:

1. The evidence here consists of plaintiff's affidavits. The record, including the notice of appeal, shows that this was the only evidence heard. The defendant did not dispute this in the trial court nor did it direct the clerk of the trial court to transmit to this court any additional transcript of evidence. Furthermore, the defendant has not suggested to this court that there is any additional evidence in the trial court which we can order transmitted. Under these circumstances we will review the record and evidence as presented to us.

2. Equity will not enjoin prosecutions under municipal ordinances where it appears that the plaintiff's business has continued uninterrupted and no irreparable injury will result pending the outcome of the prosecutions. Arnold v. Mathews, 226 Ga. 809, 177 S.E.2d 691; see also Shirley v. City of Commerce, 220 Ga. 896, 142 S.E.2d 784; Mayor & Council of Shellman v. Saxon, 134 Ga. 29, 33, 67 S.E. 438.

However, the evidence does not show affirmatively whether the plaintiff's business has or has not been interrupted by the prosecutions or that irreparable injury will result therefrom. Accordingly,...