Leger v. Ken Edwards Enterprises, Inc., 24139
| Decision Date | 06 July 1967 |
| Docket Number | No. 24139,24139 |
| Citation | 156 S.E.2d 651,223 Ga. 536 |
| Parties | Lawrence L. LEGER et al. v. KEN EDWARDS ENTERPRISES, INC., et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. The motion to dismiss the appeal because the transcript of the record was not filed prior to the expiration of a sixty-day extension of the time for filing the transcript is without merit, as the transcript was filed within the sixty-day extension, since the time ran from the expiration of the first period for filing and not from the date of the order of the court granting the extension.
2. Zoning ordinances of a county can not be judicially noticed by the superior court or this court, but must be alleged and proved as matters of fact in the superior court; and while positively verified pleadings serve the office of both pleading and evidence on the application for injunction, where, as here, the pleadings were not verified nor the ordinances proved, the court did not abuse its discretion in denying a temporary injunction enjoining the violation of such ordinances.
3. The court did not err in denying a temporary injunction enjoining encroachments by the defendant upon the petitioners' property, where the evidence was conflicting as to whether there was any encroachment, and there was no evidence that the petitioners' property was being damaged in any way that called for immediate and urgent action of the court.
4. It was not error for the court to deny the temporary injunction against Marvin L. Beadle, Planning Officer of DeKalb County, where the injunction sought was to compel him to act, as an injunction may only restrain, and may not compel a party to act. The same ruling applies to the relief sought against the DeKalb County Commissioners, as the petition prayed for mandatory action on their part.
Haas, Holland, Freeman, Levison & Gibert, Richard N. Hubert, Atlanta, for appellants.
Davis & Stringer, Thomas O. Davis, Herbert O. Edwards, George P. Dillard, Decatur, for appellees.
The appellants, Lawrence L. Leger and R.R. Leger, brought their petition against Ken Edwards Enterprises, Inc., alleging that they owned property adjoining that of Edwards which was separated by Peachtree Creek. They sought to temporarily and permanently enjoin the defendants from encroaching on their property, building in the creek bed (the dividing line between their properties), depositing mud, silt, and debris in the creek and on the petitioners' property, diverting water, and violating zoning ordinances of DeKalb County in erecting an apartment building on their property, and prayed for damages. Marvin L. Beadle, Director of the Planning Department of DeKlab County, was named as a party defendant, and the petition prayed that he be enjoined from issuing or approving any further building permit for construction on the property, and 'from not declaring null and void all the building permit or permits and certificates of compliance previously issued to the defendants and any authorization * * * to proceed with further construction until defendant, Ken Edwards Enterprises, Inc., has strictly complied with all the zoning ordinances and building requirement for said project;' and that Beadle be enjoined from 'not notifying all public utilities and county service departments, and requesting that all service be withheld therefrom until such time as the structure and premises are no longer in violation of the DeKalb County Code and Zoning Ordinance.'
By amendments the petitioners sought to make 'the Commission of Roads and Revenues for DeKalb County as the governing authority of said county' a party, served the five members of the commission, and sought to enjoin the commission from failing to enforce the zoning ordinances, from permitting further construction and occupancy of the apartment house, and from approving the structure until zoning ordinances have been complied with, as well as denying them public utilities and other services.
After hearing evidence at an interlocutory hearing, the trial judge denied the grant of a temporary injunction, and it is from this judgment that this appeal was made. The appellants enumerate as error the denial of a temporary injunction upon a number of grounds.
1. The motion of the appellee to dismiss the appeal because of the failure of the appellants to file the transcript within thirty days of the filing of the notice of appeal, or any extension thereof, is without merit. The thirty-day period after notice of appeal expired December 30, 1966. On December 28, 1966, a sixty-day extension of the original thirty-day period was granted, which would expire on February 28, 1967. On that day an order was granted (which was within the sixty-day extension) extending the time thirty days. The fallacy in the appellee's argument is that the sixty-day extension began to run upon the expiration of the thirty...
To continue reading
Request your trial
-
Reeves v. Morgan
...v. Evans, 121 Ga. 391(3), 49 S.E. 308; Hill v. City of Atlanta, 125 Ga. 697(2), 54 S.E. 354, 5 Ann.Cas. 614; Leger v. Ken Edwards Enterprises, 223 Ga. 536, 539, 156 S.E.2d 651. (b) Before a municipal ordinance is admissible in evidence, it must be pleaded and proved as a matter of fact. It ......
-
Prime Home Props. v. Rockdale Bd. of Health
...ordinances constitute foreign law, and neither we nor the superior court can take judicial notice of them. Leger v. Ken Edwards Enterprises, 223 Ga. 536, 539(2), 156 S.E.2d 651 (1967); See OCGA § 24-1-4.2 county ordinance has the status of a private act and must be pled and proved. Childers......
-
Lemon v. Martin
...is not "published by authority." See generally Oliver v. City of Macon, 241 Ga. 306, 245 S.E.2d 280 (1978); Leger v. Ken Edwards Enterprises, 223 Ga. 536, 156 S.E.2d 651 (1967); Poole v. State, 229 Ga.App. 406, 409(2), 494 S.E.2d 251 (1997); Dudley v. State, 161 Ga.App. 310, 311(1), 287 S.E......
- Wilson v. State
-
Local Government Law - R. Perry Sentell, Jr.
...and which the trial court purported to apply, was not introduced into evidence." Id. 246. Id. (quoting Leger v. Ken Edwards Enterprises, 223 Ga. 536, 539(2), 156 S.E.2d 651 (1967)). 247. Id. The county fared no better in the period case of Hixon v. Walker County, 266 Ga. 641,468 S.E.2d 744 ......