J. D. Jewell, Inc. v. Hancock
| Decision Date | 19 May 1970 |
| Docket Number | No. 25749,25749 |
| Citation | 226 Ga. 480,175 S.E.2d 847 |
| Parties | J. D. JEWELL, INC. et al. v. Nat HANCOCK, District Attorney. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. The motion to dismiss is denied.
2. An action for injunction may be brought in the county of the residence of a joint tortfeasor participating in the maintenance of a continuing nuisance, even though he is an employee acting under the direction of a corporation which is a resident of another county.
3. The powers and duties given to the Water Quality Control Board and the Board of Health of the State of Georgia in connection with air and water pollution are not exclusive so as to preempt the authority given to district attorneys by Code § 72-202 to abate nuisances involving air and water pollution.
4. An allegation that an exhibit was attached to the complaint was later struck by amendment, and service on the defendants was not defective because of the failure to attach the exhibit.
5. A general denial of any and all allegations of a complaint because the defendant is 'without knowledge or information sufficient to form a belief as to the truth of the allegations,' can not be considered as a denial of the allegation that the defendant is a resident of the county in which the action is brought. Such an evasive answer of a matter necessarily within the knowledge of the defendant will be considered as an admission of the allegation of residence.
6. There was evidence that the plant of the corporate defendant was being operated in such manner as to make it a nuisance, and that the resident employees worked in supervisory capacities in the plant, although under the direction of superior employees, and the trial judge did not err in finding that the court had jurisdiction of the action.
7. No error is shown in the admission of described photographs in evidence.
8. There was no error in admitting testimony of a conversation with the plant manager of the corporate defendant, over the objection that it was hearsay, where it was shown that the manager was acting within the scope of his employment and about the business of his employer at the time of the conversation.
9. The rules of evidence are not as rigidly enforced on interlocutory hearings as on final trials, and the letter improperly admitted in evidence was not of such vital and controlling character as to require a reversal of the judgment granting interlocutory injunction.
Norton, Cooper, Lang, Stowers & Deal, William Norton, Jr., Gainesville, for appellants.
Nat Hancock, Dist. Atty., Jack S. Davidson, Jefferson, for appellee.
Abit Massey, Gainesville, for party at interest not party to record.
The appeal in this case is from the grant of an interlocutory injunction against J. D. Jewell, Inc., and three of its employees, in an action brought by the District Attorney of the Piedmont Judicial Circuit, on the relation of named citizens and residents of Jackson County. The complaint alleged that the defendants were operating a rendering plant in a manner to make it a continuing nuisance.
1. Motion to dismiss has been filed by the appellees on the ground that the appellants failed to pay the costs in the Superior Court of Jackson County prior to the transmittal of the record to this court, or to make an affidavit that they were unable to pay the costs or give security therefor. The motion is accompanied by a certificate of the Clerk of Jackson Superior Court that the record was transmitted on February 18, 1970, that a bill for the costs was mailed to counsel for the appellants on February 25, 1970, and on the date of the certificate, March 19, 1970, the costs had not been paid nor any affidavit filed by the appellants that they are unable to pay the costs or give security therefor.
Former Code § 24-2729 provided: 'When a clerk transmits a record to the appellate courts, except in cases where affidavit of inability to pay cost is filed, he may make out a bill of costs for such transcript, and when presented to the judge of the court and by him found to be correct, the judge shall award, either in term time or vacation, judgment in favor of the clerk for such cost.' Under this former law, the clerks could not refuse to transmit the record to this court even though their costs had not been paid. See In the Matter of Contempt by Four Clerks, 111 Ga. 89, 36 S.E. 237. The amendment to the section (Ga.L.1963, p. 368) was passed to enable the clerks to collect their costs prior to the transmission of the record.
The present law makes it the duty of the clerks to collect the costs before transmitting the record to this court, unless the appellant makes affidavit that he is unable to pay the costs or give security therefor. In the present case the transcript was sent to this court prior to the time a bill for the costs was sent to the appellant. It would be manifestly unfair to dismiss the appeal because the clerk sent the record to this court before the appellant had any opportunity to pay the costs.
The Clerk of Jackson Superior Court is compensated by a salary, and is not on a fee basis. The Act placing the clerk on a salary (Ga.L.1968, pp. 2536-2542) requires him to faithfully undertake to collect all costs, and to hold the sums collected in trust. If the clerk breaches his duty to collect the costs before sending the record to this court, this would be a matter between him and the county, and would not affect the rights of parties litigant. Compare Whitsett v. Hester-Bowman Enterprises, 94 Ga.App. 78, 81, 93 S.E.2d 788. Likewise, in a county where the clerk is on a fee basis, the clerk's waiver of the benefits of the law passed for the purpose of insuring his collection of the costs prior to sending the record to this court, would not affect the rights of litigants.
The decision of this court in Howard v. Mitcham, 224 Ga. 288, 161 S.E.2d 291, in which two Justices dissented, is expressly disapproved and will not be followed.
The motion to dismiss is denied.
2. Error is assigned on the failure of the trial court to sustain the motions of the defendants (appellants) to dismiss the complaint for failure to show venue in Jackson County. The defendants assert that the complaint shows that J. D. Jewell Inc., is a resident of Hall County, and that its employees named as defendants, alleged to be residents of Jackson County, are mere nominal defendants against whom no substantial relief is prayed.
The complaint alleges: 'J. D. Jewell, Inc. is a corporation created by a judgment of the Superior Court of Hall County, Georgia; said corporation doing business as J. D. Jewell By-Products Division, Pendergrass, Georgia; Sam Underwood, Randall Gee and Jeff Jones are residents of Jackson County, Georgia, and are employees and foremen in the operation of said plant.' Numerous acts constituting continuing nuisance are ascribed to 'the defendants,' and injunction is prayed against all of them.
The Constitution, Art. VI, Sec. XIV, Par. III (Code Ann. § 2-4903) provides: 'Equity cases shall be tried in the county where a defendant resides against whom substantial relief is prayed.' Art. VI, Sec. XIV, Par. IV (Code Ann. § 2-4904) provides: 'Suits against joint obligors, joint promissors, copartners, or joint trespassers, residing in different counties, may be tried in either county.'
In actions to enjoin nuisances similar to that alleged in the present complaint this court has denominated the defendants as joint tortfeasors (Poultryland Inc. v. Anderson, 200 Ga. 549, 559, 37 S.E.2d 785), and as joint trespassers (Bennett v. Bagwell & Stewart, Inc., 214 Ga. 115, 116, 103 S.E.2d 561). In Central of Ga. Ry. Co. v. Americus Construction Co., 133 Ga. 392, 398, 65 S.E. 855, 857, it was said: See also Rinzler v. Folsom, 209 Ga. 549, 552, 74 S.E.2d 661.
Technically speaking, it might be more accurate to speak of one maintaining a nuisance as being a tortfeasor rather than a trespasser, but the meaning of the word 'trespass' is broad enough so that an action against persons jointly maintaining a nuisance can be brought in the county of the residence of either under the constitutional provision (Code Ann. § 2-4904) concerning joint trespassers residing in different counties. See Cox v. Strickland, 120 Ga. 104, 47 S.E. 912, 1 Ann.Cas. 870.
The Superior Court of Jackson County would have jurisdiction of the action despite the fact that the only resident defendants are employees of the nonresident defendant, acting under its direction, since the employees are alleged to be joint participants in the maintenance of the nuisance, and injunctive relief is sought against them. See Hoch v. Candler, 190 Ga. 390, 9 S.E.2d 622; Baggett v. Linder, 208 Ga. 590(2), 68 S.E.2d 469. There is no merit in the contention that the complaint should have been dismissed because it did not show venue in Jackson County.
3. It is contended that the complaint should have been dismissed on the ground of lack of jurisdiction of the subject matter for the reason that (a) the Georgia Water Quality Control Board has exclusive jurisdiction of matters pertaining to water pollution (Ga.L.1964, pp. 416-436, as amended; Code Ann. Ch. 17-5); and (b) the Board of Health of the State of Georgia has exclusive jurisdiction of matters pertaining to air pollution (Ga.L.1967, pp. 581-590; Code Ann. Ch. 88-9), which pre-empts the authority given to district attorneys by Code § 72-202 to abate nuisances of air and water pollution.
(a) Section...
To continue reading
Request your trial
-
Brooks v. State
...on appeal except for abuse of that discretion. Thornton v. Thornton, 232 Ga. 666, 667, 208 S.E.2d 557 (1974); J. D. Jewell, Inc. v. Hancock, 226 Ga. 480, 487, 175 S.E.2d 847 (1970). In this case, appellant was indicted for the crime of rape, which Georgia law defines as carnal knowledge of ......
-
Petree v. State
...an act that is itself legal, but which nevertheless causes damage to the property of another. Id. See also J. D. Jewell, Inc. v. Hancock , 226 Ga. 480, 483 (2), 175 S.E.2d 847 (1970) ("[t]he distinction between trespass and nuisance consists in the former being a direct infringement of one'......
-
Lindsey v. Guhl
...Pugh v. Moore, 207 Ga. 453(2), 62 S.E.2d 153; S. A. Lynch Corp. v. Stone, 211 Ga. 516(2), 87 S.E.2d 57.' J. D. Jewell, Inc. v. Hancock, 226 Ga. 480, 488, 175 S.E.2d 847, 854 (1970). In enumerations of error Nos. 22, 23, 25, 26, 27, 30 and 31, plaintiffs complain that they were denied a thor......
-
Ga. Pac. Consumer Prods., LP v. Ratner
...v. Ga. Dept. of Transp. , 340 Ga. App. 694, 702, 798 S.E.2d 482 (2017) (physical precedent only), citing J. D. Jewell, Inc. v. Hancock , 226 Ga. 480, 483 (2), 175 S.E.2d 847 (1970), Rinzler v. Folsom , 209 Ga. 549, 552 (2), 74 S.E.2d 661 (1953), Bishop Eddie Long Ministries v. Dillard , 272......