Hannah v. Kenny

• Court: Georgia Supreme Court
• Writing for the Court: MOBLEY
• Citation: Hannah v. Kenny, 210 Ga. 824, 83 S.E.2d 1 (Ga. 1954)
• Decision Date: 13 July 1954
• Docket Number: No. 18602,18602
• Parties: HANNAH et al. v. KENNY et al.

Page 1

83 S.E.2d 1

210 Ga. 824

HANNAH et al. v. KENNY et al.

No. 18602.

Supreme Court of Georgia.

July 13, 1954.

Rehearing Denied July 27, 1954.

Syllabus by the Court.

1. There is no merit in the motion to dismiss the bill of exceptions.

2. Prior to the passage of the act approved December 22, 1953, Ga.L.1953, pp. 440, 453, abolishing exceptions pendente lite in causes then or thereafter pending, where no exceptions pendente lite were filed to a judgment overruling a demurrer, an exception to such ruling contained in the bill of exceptions, presented more than twenty days after the date of the ruling complained of, was too late for consideration. Leggett v. Alazos, 209 Ga. 477(1), 74 S.E.2d 69, and cases cited. Accordingly, since the judgment here complained of was rendered on May 11, 1953, more than seven months prior to the passage of said act abolishing exceptions pendente lite, its provisions are not applicable in the present case, and an assignment of error in the bill of exceptions which was filed more than eleven months after rendition of such judgment cannot be considered.

3. The first special ground of the amended motion for new trial assigns error because the trial court excluded from the consideration of the jury petitioners' exhibit No. 16, the same being alleged to be the deed from Georgia Power Company to the Ingleside Church of God, together with a plat showing the location of lots 4, 5, 6, and 7, Block 30, Ingleside Subdivision. The exhibit referred to in neither set out in this ground of the amended motion, nor attached thereto, and therefore this ground cannot be considered. Dowdell v. State, 200 Ga. 775(3), 38 S.E.2d 780; Pippin v. State, 205 Ga. 316(7), 53 S.E.2d 482; Darden v. State, 208 Ga. 599(1), 68 S.E.2d 559.

4. The second special ground of the motion for new trial assigns error because the trial court failed to charge the conditions and circumstances out of which abandonment will arise and, in case of abandonment, to whom the abandoned estate reverts. The court in charging on abandonment instructed the jury among other things: 'Now, before you would be authorized to believe and find that a street was forfeited or abandoned, you would have to find from the evidence that there was a clear and unequivocal intention of the people who owned the property to abandon that street. It would have to be such an abandonment as would be inconsistent with the clause in the deed wherein the street was laid out and provided for the people. If you should believe that it was abandoned, that there was some manifestation on the part of the predecessors in title that they were to abandon this street and did abandon it, and the right to use this street was forfeited, then I charge you that you would be authorized to find for the defendants.' If further instructions were desired, a timely request should have been made therefor.

5. The third special ground assigns error because the trial court failed to charge the jury as to location and instructing the jury to fix the location of Grand Avenue. No question as to the location of Grand Avenue was raised by the pleadings, and in the absence of a timely request, the court did not err in failing to charge on this question. Palmer v. Hinson, 201 Ga. 654(3), 40 S.E.2d 526.

6. The fourth special ground assigns error because the trial court failed to charge all the law applicable to the contentions of the parties and the facts in the case. After charging on the contentions of the respective parties, the court told the jury: 'Now those are the contentions of the parties in the case substantially and these are the papers which you will have out with you, and you may read them for yourselves and see just what the parties set forth in their respective pleadings.' There is no merit in this ground of the motion for new trial.

7. The evidence was insufficient to support the verdict of the jury, finding that the defendants acquired title by adverse possession, and consequently the trial court erred in decreeing title in the defendants, and in permanently enjoining the petitioners from using Grand Avenue for purposes of ingress and egress.

Clyde Hannah and others as Trustees of the Ingleside Church of God, and W. L. Hudgins individually, filed in DeKalb Superior Court, against R. M. Kenny and William R. Stanford, a petition which as amended alleged substantially the following: Petitioners are owners of certain houses in DeKalb County on designated lots in Blocks 30 and 31 of the Ingleside Subdivision. Defendant Kenny owns lots 1 and 2, and defendant Stanford owns lots 3 and 4 in Block 31. Separating Blocks 30 and 31 is a 50-feet street known as Grand Avenue. Lots in Blocks 30 and 31 are so planned and surveyed that one end of each lot fronts on Grand Avenue. The owners and subdividers sold lots to purchasers and described them as being lots of the Ingleside property as per plat recorded January 22, 1892, and the purchasers of lots in Blocks 30 and 31 acquired a valid vested easement in and to Grand Avenue, which easement runs with the land. Defendants are seeking to deprive petitioners of the use and benefit of their easement in Grand Avenue, which petitioners have the right of in respect to their respective lots, and defendant Kenny is commencing to erect a building in and on Grand Avenue to the injury of petitioners, and against their rights therein. The injury is irreparable, and petitioners do not have an adequate remedy at law. The prayers, besides for process and a rule nisi, were that the defendants be enjoined from committing the acts of damage and trespass complained of, and that petitioners have general equitable relief.

The defendant Kenny filed a demurrer to the original petition on general and special grounds, and an answer which as amended denied material allegations of the petition and averred: Grand Avenue was never open to public use, has never been used by the public in general nor by any of the abutting landowners as a street for ingress or egress, and has never been accepted by any public authority or the public in general; defendant has acquired title in and to said street by reason of his continuous, open, and notorious adverse possession thereof for more than twenty years and under a claim of right. The only prayer in the answer was that the petition be dismissed.

The petitioners filed a demurrer to the amended answer. On May 11, 1953, the trial court overruled the petitioners' demurrer to the amended answer, and the defendants' demurrer to the original petition. So far as appears from the record, no exceptions pendente were filed to the above ruling on demurrer.

On May 26, 1953, the trial court granted a motion of the defendant Kenny to consolidate with the present case an equitable proceeding in which Kenny sought an injunction against Clarence C. Cates and others, where the only remaining issue was whether a temporary injunction previously granted should be made permanent.

On the trial Homer Harvey, Clerk of the Ingleside Church of God, testified in part: The church owned certain lots abutting on Grand Avenue. A building of the defendants extends 5 feet into Grand Avenue. The church has used Grand Avenue for ingress and egress since 1950 and for parking and getting into the back part of the church property. There are no dwellings in Block 30 where the church property is. There are three houses and a garage apartment in Block 31 facing old Stone Mountain Road. Defendant Stanford's house or the old Davis house, the only one built to face Grand Avenue, is within 3 feet of Grand Avenue. There is a chicken house on the portion of Grand Avenue at the rear of the Stanford house, directly back of the church. It has been there a long time and is now rotted down.

L. O. Foster testified for petitioners: Grand Avenue is now open. It has not been blocked for 32 years during which time it has been used for ingress and egress. Practically all of a little store building, the overall length of which is...