Guhl v. Tuggle

• Decision Date: 24 October 1978
• Docket Number: No. 33831,33831
• Citation: 249 S.E.2d 219,242 Ga. 412
• Parties: GUHL et al. v. TUGGLE et al.
• Court: Georgia Supreme Court

Page 219

249 S.E.2d 219

242 Ga. 412

GUHL et al. v. TUGGLE et al.

No. 33831.

Supreme Court of Georgia.

Argued July 12, 1978.

Decided Oct. 24, 1978.

George P. Dillard, Gail C. Flake, Decatur, for appellants.

Zachary & Segraves, Kenneth W. Carpenter, Decatur, for appellees.

UNDERCOFLER, Presiding Justice.

Plaintiffs, Tuggle and Ross, brought this suit against the Board of Commissioners of DeKalb County to declare the residential zoning on their property unconstitutional. The trial court agreed and remanded the case to the board of commissioners for rezoning under our decision in City of Atlanta v. McLennan, 237 Ga. 25, 226 S.E.2d 732 (1976). The board failed to act within the allotted time and the trial court, on the property owners' motion, declared the property free of all zoning. The commissioners appeal. We affirm.

1. In enumeration of error 25, the commissioners raise the failure of the property owners to sue the county as required by the Georgia Constitution, Art. IX, Sec. I, Par. I; Code Ann. § 2-5801 ¹ and Code Ann. § 23-1503. ² Prior to the adoption of the Civil Practice Act, such a defect was nonamendable and required dismissal. Merritt v. Dixon, 222 Ga. 432, 150 S.E.2d 644 (1966); Duggar v. East Tenn., Va. & Ga. R. Co., 85 Ga. 437, 11 S.E. 811 (1890); Arnett v. Bd. of Commrs., 75 Ga. 782 (1885). We note here that the members of the board of commissioners are proper, although not necessary, parties to this suit. ³ Riverhill Community Assn. v. Cobb County Bd. of Commrs., 236 Ga. 856, 226 S.E.2d 54 (1976). The property owners' argument that the board members are necessary insofar as their petition states a claim in mandamus is without merit. Suits in mandamus are properly filed against the public officials as individuals (Bulloch County v Ritzert, 213 Ga. 818, 102 S.E.2d 40 (1958)), and the property owners have sued the commissioners here in their official capacities.

Code Ann. § 81A-119, however, provides for "joinder of persons needed for just adjudication." ⁴ And Code Ann. § 81A-121, states that "(m)isjoinder of parties is not ground for dismissal of an action . . ." In Smith v. Merchants & Farmers Bank, 226 Ga. 715, 718, 117 S.E.2d 249 (1970), we said: "Under the provisions of § 12 of the Civil Practice Act (Code Ann. § 81A-112) failure to join an indispensable party is a defense which may be raised by motion. Likewise, under § 21 of the Civil Practice Act (Code Ann. § 81A-121), where there has been a nonjoinder of a necessary party such party may be added on motion of any party or by the court on its own initiative. Such language does not mean, however, that the trial court must order the making of a new party in all cases where an indispensable party is not named by a plaintiff. Where the question of an indispensable party is expressly passed upon by the trial court it will be held that the plaintiff had such notice as would have afforded him an opportunity to seek the addition of such party (Compare Emhart Corp. v. McLarty, 226 Ga. 621, 176 S.E.2d 698 (1970)), but where neither the motion to dismiss nor the judgment of the trial court discloses any intent to raise or pass upon such question it will be deemed for the purpose of review, of a judgment overruling a motion to dismiss for failure to state a claim, as an amendable defect, and the petition otherwise was not subject to being dismissed for failure to state a claim." We hold this reasoning also applies in a case such as this where the plaintiff has failed to name the county in a suit against it. Thus, after the passage of the Civil Practice Act, the failure to name the county will no longer be considered a nonamendable defect Requiring dismissal. But pursuant to Code Ann. § 81A-119(b) we must consider whether "in equity and good conscience the action should proceed among the parties before it, or should be dismissed, . . ."

We do not find that the county has been prejudiced by the action taken in the trial court to which it was not a named party. The commissioners, the county zoning and governing authority, were parties and a vigorous defense was presented on the board's behalf by the county attorney. Thus, we see no harm resulting from the failure of the property owners to name the county as a party and dismissal is, therefore, not appropriate.

As provided in Code Ann. § 81A-121, "(p)arties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just." This includes appeal. See generally 7 Wright & Miller, Federal Practice and Procedure: Civil § 1609. The county must be added as a party defendant by amendment upon remittitur of this case to the trial court. With this addition, the grounds for dismissal urged in Enumeration 25 are without merit.

2. In enumerations of error 1, 2, 6, 10, 11, 12, 13, 14, 15, 16 and 20, the board of commissioners attack the trial court's ruling that the residential zoning on the property in question was unconstitutional. The land is located near a busy intersection that is already developed commercially, and is partially bordered by land zoned for other than residential uses. Under the test set out in Barrett v. Hamby, 235 Ga. 262, 219 S.E.2d 399 (1975), and the factors ⁵ to be considered under Guhl v. Holcomb Bridge Road Corp., 238 Ga. 322, 232 S.E.2d 830 (1977), the trial court did not err in holding the residential zoning unconstitutional. Nor did it err in declaring the property free from zoning on motion by the property owners after the board of commissioners refused to rezone the property in the time allotted. City of Atlanta v. McLennan, supra. Therefore, enumerations of error 3, 19, 21 and 22 are also without merit.

3. In its enumerations of error 7, 8, 9 and 17, the county claims that the property owners are estopped from asserting that the current, single family zoning is unconstitutional because they resisted any zoning other than office-institutional or commercial at the hearing the commissioners held in response to the trial court's order to rezone the property. At that time, the commissioners offered to rezone to a higher density residential classification, which the property owners refused to accept. There is no merit to this contention. The trial court had already ruled that the present zoning was unconstitutional. There is no reason why they could not assert their preference for office-institutional at the rezoning hearing. The board was free to rezone to any constitutional level it desired. That it chose not to act in the face of the property...