Gilliam v. Etheridge
| Decision Date | 29 June 1942 |
| Docket Number | 29571. |
| Citation | 21 S.E.2d 556,67 Ga.App. 731 |
| Parties | GILLIAM et al. v. ETHERIDGE. |
| Court | Georgia Court of Appeals |
Rehearing Denied July 28, 1942.
Syllabus Opinion by the Court.
In 1927 L. M. Etheridge purchased a lot located at the intersection of Flat Shoals and May Avenues in the City of Atlanta, the lot being sold out of a subdivision for business property. He immediately erected a filling station thereon and has continued to operate it. The charter of the City of Atlanta was by an act of 1929 (Ga.L.1929, p. 818), as amended by the act of 1931 (Ga.L.1931, p. 651), amended authorizing the city to enact zoning ordinances for business and residential property. The city subsequently passed such zoning ordinance, the property of Etheridge being classified as residential property. In March, 1941, he made application to the building inspector of the City of Atlanta for a permit to make certain alterations and additions to his filling station property. This permit was declined by the building inspector "because said property had been included in the comprehensive plan for zoning said city for residential purposes." Etheridge then filed an appeal to the Board of Zoning Appeals of the City of Atlanta, which board had been created under the provisions of the amendment to its charter for the purpose of hearing appeals from the rulings of the building inspector. The Board of Zoning Appeals had a hearing on the said appeal and granted the appeal, but directed that Etheridge not be permitted to make certain improvements desired, although authorizing certain other improvements on the property. The petitioner then filed an application for certiorari in the superior court, naming as defendants in error the three individuals constituting the Board of Zoning Appeals of the City of Atlanta and the City of Atlanta. The certiorari was sanctioned and upon a hearing thereof the judge of the superior court sustained the certiorari and remanded the case to the Board of Zoning Appeals. By bill of exceptions the three individuals constituting the Board of Zoning Appeals brought the case to this court assigning error on the ruling of the judge of the superior court.
In this court Etheridge, defendant in error, filed a written motion to dismiss the bill of exceptions on the ground that no proper party is named as plaintiff in error and that the record shows that no party entitled to do so has excepted to the judgment rendered in the superior court. The plaintiffs in error, constituting the membership of the Board of Zoning Appeals, then filed their written motion to amend the bill of exceptions so as to make the City of Atlanta a plaintiff in error in the same.
Savage Sterne, Murphy & Hooper, of Atlanta, for plaintiff in error.
J Lon Duckworth, of Atlanta, for defendant in error.
1. Bryan v. Rowland, 166 Ga. 719, 724, 144 S.E. 275, 277.
2. A party not aggrieved by the judgment complained of is without legal right to except thereto, and it is not his privilege to bring under review the correctness of the judgment entered; and the right to introduce by amendment necessary parties plaintiff in error in this court is limited to those litigants who are entitled to sue out a writ of error and can not be exercised for the benefit of another by one not himself injuriously affected by the judgment excepted to. Georgia Music Operators Ass'n v. Fulton County, 184 Ga. 348, 191 S.E. 117.
3. The City of Atlanta was aggrieved by the judgment rendered in the superior court sustaining the certiorari in which it had been made a party defendant with the Board of Zoning Appeals of the city, but not the Board of Zoning Appeals to which an appeal had been taken from a decision of the building inspector of the city in respect to an application of the defendant in certiorari to improve his property under a zoning ordinance passed by the city pursuant to the amendment to its charter by the act of 1929 (Ga.L.1929, p. 818) as amended by the act of 1931 (Ga. L.1931, p. 651). Under the above authorities the Board of Zoning Appeals had no right to except to the judgment complained of, and is not a proper party plaintiff in error in the bill of exceptions brought to this court, and the writ of error, having been sued out by one not entitled to except, is void. While it is true that the writ of certiorari is directed to a judge of an inferior judicatory or a person or persons composing the tribunal whose decision is sought to be reviewed, and is for the purpose of requiring such person or persons to answer and certify to the proceeding had in such inferior judicatory or tribunal, this does not make such respondent a party litigant or such a party as would be interested or aggrieved by the judgment complained of or by the judgment rendered in the certiorari proceeding, so as to entitle him to except, as an interested or aggrieved party, to the decision rendered in the certiorari proceeding. The proffered amendment, attempting to insert as a proper party plaintiff in error the name of the City of Atlanta, which would have been entitled to sue out the writ of error, must be disallowed, and the writ of error, on motion, be dismissed.
Writ of error dismissed.
I dissent from the judgment whereby the motion of the plaintiffs in error to make the City of Atlanta a party plaintiff in error is denied and the writ of error dismissed. Conceding that a party can not except to a judgment or decree which does not operate on his rights of property, and which does not bear directly on his interest, and that a bill of exceptions brought by such party alone would be invalid and should be dismissed, I am of the opinion that the plaintiffs in error in this case, who are excepting to the judgment sustaining a certiorari, to which they were parties defendant, are excepting to a judgment which operates on and affects their property rights and bears directly on their interests, and that therefore the bill of exceptions is not void on the ground that the complaining parties were not aggrieved by the judgment rendered of which they complain.
The plaintiffs in error in this case are, as described in the bill of exceptions, "E. A. Gilliam, C. H. Van Ormer, and R. W. Torras, constituting the Board of Zoning Appeals of the City of Atlanta," and they except to a judgment sustaining a certiorari in which, as recited in the bill of exceptions, they were "named defendants."
It appears from the record that the petition for certiorari was brought by L. M. Etheridge. In it he complains, on various grounds, of a judgment of the "Board of Zoning Appeals" of the City of Atlanta, which, as appears from the statutes amending the charter of the City of Atlanta, is an inferior judicatory having the right to exercise judicial powers. The petition for certiorari names as the defendants "Ed A. Gilliam, C. H. Van Ormer, R. W. Torras, constituting the Board of Zoning Appeals of the City of Atlanta, and the City of Atlanta," and alleges that these named individuals "are named defendants herein in their official capacity as members of such committee." Such committee must necessarily refer to the Board of Zoning Appeals. The writ of certiorari which issued was directed to these individuals named in the petition for certiorari, and they are described in the writ as "Judge of Municipal Board of Zoning Appeals of the City of Atlanta, court." The answer to the petition for certiorari recites that "The Board of Zoning Appeals of the City of Atlanta in the response to the petition for certiorari filed in the above stated case respectfully answers." This answer appears to have been submitted by "Ed A. Gilliam, C. H. Van Ormer, R. W. Torras, Board of Zoning Appeals City of Atlanta." The written notice required under Code § 19-212 to be given to the "opposite party in interest *** of the sanction of the writ of certiorari", is directed to the City of Atlanta and to the individuals hereinbefore referred to "constituting the Board of Zoning Appeals of the City of Atlanta." Service of this notice is acknowledged by J. C. Savage signing himself as "attorneys for defendants in certiorari."
On the hearing of the certiorari the judgment rendered was as follows: "The within certiorari is sustained and the case is remanded to the Board of Zoning Appeals of the City of Atlanta." It appears from the record that the inferior judicatory whose decision is sought to be reviewed by the certiorari is the Board of Zoning Appeals of the City of Atlanta. This appears expressly from the allegations in the petition and from the answer. The petition for certiorari complains of the judgment rendered by the Board of Zoning Appeals of the City of Atlanta, and the Board of Zoning Appeals, as an inferior judicatory sought to be reviewed, files its answer to the petition.
The defendants in the petition for certiorari as recited in the petition and to whom the notice required in the Code, § 19-212, is directed, and for whom J. C. Savage as attorney acknowledged service for "defendants in certiorari," were the City of Atlanta and certain...
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