Graham v. Phinizy
| Decision Date | 10 January 1949 |
| Docket Number | 16434. |
| Citation | 51 S.E.2d 451,204 Ga. 638 |
| Parties | GRAHAM et al. v. PHINIZY et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. The motion to dismiss the writ of error is denied.
2. Under the facts alleged, the petition set forth a cause of action as against property owners allegedly undertaking to remodel a dwelling house in a zoned district in violation of a valid zoning ordinance, and the trial judge erred in sustaining the general demurrers of these defendants.
3. No error was committed in the final judgment sustaining the general demurrers interposed by two of the parties defendant.
Mrs Leah White Graham and others filed an equitable petition against Dr. Thomas B. Phinizy, Frank C. Walter, and the City Council of Augusta. The petition alleged: that on November 6, 1947, the defendant Phinizy acquired certain described property from one Crowell, who had owned the property since 1909; that, prior to the time Phinizy acquired the property, the dwelling house located thereon had been used continuously as a one-family dwelling; and that on July 8, 1930, the City Council of Augusta passed a zoning ordinance, a copy of which attached to the petition as an exhibit. Material portions of the ordinance read
The petition further alleged: that the described property is located in the City of Augusta within an area classified as a U1 district, that is, a single-family dwelling house district; that the plaintiffs own property in the same district within close proximity to the described property owned by the defendant; that on July 23, 1948, the plaintiffs learned that the defendant Phinizy was converting the described one-family dwelling house into at least three apartments, which action of the defendant is in violation of the zoning ordinance; that it is the purpose of the defendant Phinizy to lease or rent the described property and such apartments to third parties when the remodeling is completed, and to permit the occupancy of the house by at least three families; that such leasing or renting of the property would be in violation of the zoning ordinance; that the defendant Walter is the Commissioner of Building for the City Council of Augusta, and on April 18, 1948, acting for the City Council, he issued to a named contractor and the defendant Phinizy, as owner, a construction permit; that the defendant Walter issued the permit negligently and carelessly without inspecting the premises to ascertain that the house was located in a U1 district; and that the permit to remodel, being in violation of the zoning ordinance and without legal authority, is void. The plaintiffs prayed for an injunction, enjoining and restraining the defendant Phinizy from remodeling the described property, and from renting or leasing the property, in violation of the zoning ordinance; and that the permit be canceled.
General and special demurrers to the petition were filed by the defendant Phinizy, and the defendants Walter and the City Council of Augusta demurred generally upon the ground that the petition set forth no cause of action against them.
On September 2, 1948, the case came on regularly for a hearing. At that time the plaintiffs offered, and the court allowed, an amendment to the petition and a motion to make Mrs. Pauline Phinizy, a tenant in common of the property involved, a party defendant. This amendment alleged with particularity the distances between the property of the plaintiffs and the defendants, ranging from 52 1/2 feet to 284 1/2 feet. After the allowance of the amendment, Mrs. Pauline Phinizy acknowledged service, waived notice and process, and was made a party defendant. The court then, by agreement of the parties, allowed Mrs. Pauline Phinizy to adopt the demurrer originally filed by Thomas B. Phinizy, and allowed both these defendants to orally renew their demurrers to the petition as amended, granting them until the following day to reduce the renewed demurrers to writing.
At the conclusion of the hearing, the court announced orally that the general demurrers of Thomas B. Phinizy and Mrs. Pauline Phinizy were sustained, and directed their counsel to prepare and present orders for the court's signature on the following morning. Thereafter, on September 3, 1948, the plaintiffs presented to the court for allowance another amendment, in which they alleged, in substance: that the use of the property involved as an apartment house violated vested property rights of the plaintiffs as owners of property in a U1 residential district, which is restricted to single-family dwellings; that property in a U1 district is more valuable than property in a U2 or U3 district, where multiple-family dwellings are allowed; that the plaintiffs would suffer irreparable injury because they could not be completely and adequnately compensated in damages, and the injury would be incapable of measurement by any pecuniary standard; and that the use of the property involved as a multiple-family dwelling would increase the noise and traffic in the neighborhood and make the district more hazardous for the plaintiffs' children.
It appears from the bill of exceptions that simultaneously with the presentation of the last-mentioned amendment, counsel for the defendants presented their written renewed demurrers to the petition as amended and the proposed order sustaining the demurrers. The trial judge first added by pen and ink to the proposed order allowing the amendment the following: 'The above amendment was presented on September 3, 1948, after the hearing on September 2, 1948, and after the announcement of the court, the ruling on the demurrer, but before the order on the demurrer was signed.' The court then signed the following order: 'The general demurrer of Thomas B. Phinizy and the general demurrer of Pauline Phinizy to plaintiffs' petition as amended are each hereby sustained, and the said petition is dismissed as to the said Thomas B. Phinizy and Pauline Phinizy.' Immediately after signing this order, the court signed an order allowing the amendment, subject to demurrer and objection. Thereafter, on September 13, 1948, the court sustained the general demurrer filed by the other defendants.
To the judgments of September 3, 1948, and September 13, 1948, sustaining the renewed general demurrers to the petition, the plaintiffs excepted.
Hammond, Kennedy & Sanders, of Augusta, for plaintiffs in error.
John F. Hardin, Cumming, Nixon & Eve, Joseph B. Cumming, Fulcher & Fulcher and E. D. Fulcher, all of Augusta, for defendants in error.
1. Counsel for the defendants in error have filed a motion to dismiss the writ of error upon the ground that, 'by reason of the plaintiffs in error having presented an amendment to their petition subsequent to the announcement of the court that the general demurrers of the defendants had been sustained, they did by that action submit to the ruling of the court on the general demurrers and thereby they became estopped to except to that ruling as error.' Counsel, in support of their motion, cite and rely on Walton v Sikes, 165 Ga. 422(5), 141 S.E. 188; Rivers v. Key, 189 Ga. 832, 7 S.E.2d 732; Farrer v. Edwards, 144 Ga. 553, 87 S.E. 777; Massell Realty Co. v. Washburn, 35 Ga.App. 707, 134 S.E. 798. The first case cited merely held that, after a demurrer to an answer had been overruled, except in one particular, and the defendant had amended the answer to meet the particular objection urged, the defendant, having amended, could not be heard to complain that the amendment was not actually necessary. The other three cases relied on by counsel for the defendants in error involved conditional orders providing for the dismissal of a petition on general demurrer unless the petition was amended within a specified time. In each instance, after such an order, the plaintiff amended the petition; and in each case the court held that, having submitted to and acquiesced in the order by seeking to amend, the plaintiff waived the right to except to the ruling which required the plaintiff to amend. In none of these cases did the court hold that the petitioner was precluded, after amendment, from excepting to the final order...
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...doctrine of universal salvation,' and that the case remains pending until an order dismissing it is written and signed. Graham v. Phinizy, 204 Ga. 638, 643, 51 S.E.2d 451; Freeman v. Brown, 115 Ga. 23, 41 S.E. 385. An order conditionally sustaining a general demurrer with leave to amend, an......
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...operating a parking lot on the "residential" property, since zoning ordinances may be enforced by injunctions. See Graham v. Phinizy, 204 Ga. 638, 644(2), 51 S.E.2d 451 (1949). There being no dispute that Appellants violated the injunction in all regards, the trial court correctly adjudged ......
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