Gordon County Broadcasting Co. v. Chitwood, 19060

• Decision Date: 11 October 1955
• Docket Number: No. 19060,19060
• Citation: 90 S.E.2d 5,212 Ga. 21
• Parties: GORDON COUNTY BROADCASTING COMPANY v. Trammell CHITWOOD.
• Court: Georgia Supreme Court

Page 5

90 S.E.2d 5

212 Ga. 21

GORDON COUNTY BROADCASTING COMPANY v. Trammell CHITWOOD.

No. 19060.

Supreme Court of Georgia.

Oct. 11, 1955.

Rehearing Denied Nov. 16, 1955.

Harbin M. King, Ronald F. Chance, Calhoun, for plaintiff in error.

Henry L. Barnett, James B. Langford, Calhoun, for defendant in error.

Syllabus Opinion by the Court.

WYATT, Presiding Justice.

This is the second appearance of this case before this court. See Gordon County Broadcasting Co. v. Chitwood, 211 Ga. 544, 87 S.E.2d 78, 79, where a full statement of facts will be found. After the remittitur in the above case had been filed in the office of the clerk of the superior court and before judgment had been entered thereon, plaintiff in the court below amended his petition by adding one paragraph. Defendant demurred to the petition as amended and demurred specially to the amendment. The demurrers were overruled. Defendant then made a motion to strike the case from the docket on stated grounds. The motion was denied. The exceptions here are to the judgment of the court below overruling the demurrers to the petition as amended and to the denial of the motion to strike the case from the docket. Held:

1. When the instant case was before this court on the previous appearance, it was held, '* * * which petition fails to charge or allege that such noises and activities are unusual, unnecessary, or unreasonable in the proper conduct of the defendant's radio-broadcasting business, which is a lawful business, or that they do not result from the ordinary and necessary, and therefore proper, use and occupation of the premises for the purposes for which they were leased by the plaintiff to the defendant--such petition fails to state a cause of action for the abatement by injunction of an alleged nuisance.' Gordon County Broadcasting Co. v. Chitwood, supra. The amendment filed by the plaintiff in the court below reads as follows: 'That such noises and activity herein complained of are unusual, unnecessary, excessive, and unreasonable in the proper conduct of defendant's business and that they do not result from the ordinary, necessary and proper use and occupation of the premises for the purposes for which they were leased by the plaintiff to the defendant.' It will be seen that petitioner has added by amendment, and in the same terms, what this court said was lacking in the petition when it was previously before this court. It is contended that, since the petitioner has added what the court said was lacking before, the petition now sets out a cause of action and that this is the law of the case. With this conclusion we do not agree. It must be remembered that, in the previous opinion in the instant case, this court was not pleading and was not setting up a form to be followed in pleading. It was not there said that, if the petition had alleged the language there used, it would have been held to have set out a cause of action. This court there simply stated in general terms what the facts...