Lawrence v. Harding

• Decision Date: 20 February 1969
• Docket Number: No. 25046,25046
• Citation: Lawrence v. Harding, 166 S.E.2d 336, 225 Ga. 148 (Ga. 1969)
• Parties: Pauline Frances LAWRENCE et al. v. Richard B. HARDING et al.
• Court: Georgia Supreme Court

Page 336

166 S.E.2d 336

225 Ga. 148

Pauline Frances LAWRENCE et al. v. Richard B. HARDING et al.

No. 25046.

Supreme Court of Georgia.

Feb. 20, 1969.

Syllabus by the Court

1. If there was any error in excluding the deposition and affidavits, it was harmless.

2. The determination by the court that the structure in question was a 'building' within the terms of the restrictive covenant, and that it violated the terms of that covenant were based on issues of fact. Thus, in the absence of a showing of manifest abuse of discretion, this ruling cannot be disturbed.

3. (a) In light of the determination by the court that the structure in question was a 'building' within the terms of the covenant, the provisions of the Georgia Motor Vehicle Certificate of Title Act, Code Ann. § 68-401a are irrelevant.

(b) Appellants' contention that appellees should have specifically excluded mobile homes, if that was their intent, is irrelevant in view of the holding that the structure in question is a building for the purposes of this agreement.

Smith & Smith, C. E. Smith, Jr., Gainesville, for appellants.

R. Wilson Smith, Jr., John H. Smith, Gainesville, for appellees.

ALMAND, Presiding Justice.

The plaintiffs in this case are owners of lots in a residential subdivision, located in Hall County, which is known as the Ponderosa Subdivision.

On August 22, 1968, plaintiffs sought to permanently enjoin the defendants from maintaining a certain structure on lots owned by them in the subdivision. The structure in question was a mobile home which had been placed on a permanent foundation. The plaintiffs alleged that the structure in question, which had metal sides and a metal roof, violated the following prohibition contained in restrictive covenants applying to the subdivision: '4. No metal siding or metal roofs, no imitations, rolled roofing, no brick siding on any building erected on any lot in said subdivision.'

Both parties offered evidence at a hearing held October 23, 1968. On November 15, 1968, the Judge of Hall County Superior Court temporarily enjoined the maintenance of the structure complained of. From this decree, the defendants appealed.

1. Appellants' first enumeration of error protests the exclusion of certain depositions and affidavits. If there is any error in connection with this enumeration, it is harmless. The evidence excluded by the court in its order was offered for the purpose of showing that the restrictive covenants did not prevent the location of mobile homes in the subdivision. In its order granting the temporary injunction, the court agreed with this contention, and so ruled. Therefore, even if it was error for the court to exclude the depositions and affidavits, and we express no opinion in that regard, such error was clearly harmless.

2. Enumerations of error 2 and 3 attack the holding of the court that the structure involved was a building and that it violated the provisions of the restrictive covenant cited above.

A study of the order of the court granting the injunction clearly indicates that the decision was based on the determination by the court that the structure in question was a building within the terms of the restrictive covenant.

It is clearly settled law in Georgia that the exercise of discretion by the lower court in granting and continuing injunctions will not be interfered with in the absence of manifest abuse. Code § 55-108.

'The granting and continuing of injunctions always rests in the sound discretion of the trial judge, according to the circumstances of each case. * * * The refusal to grant an interlocutory injunction, not appearing to have been dependent upon questions of law only, but also upon material questions of fact, will not be interfered with by this court where it appears that there was a conflict in the evidence on the issues of fact.' Loadman v. Davis, 210...