Trust Co. of Georgia v. Ray

• Court: Georgia Supreme Court
• Writing for the Court: BECK, J.
• Citation: Trust Co. of Georgia v. Ray, 125 Ga. 485, 54 S. E. 145 (Ga. 1906)
• Decision Date: 16 May 1906
• Parties: TRUST CO. OF GEORGIA et al. v. RAY.

54 S.E. 145

125 Ga. 485

TRUST CO. OF GEORGIA et al. v. RAY.

Supreme Court of Georgia

May 16, 1906

Syllabus by the Court.

A writ of certiorari sued out by a party against whom had been obtained a judgment in a municipal court, ordering that he abate a public nuisance alleged to have specially injured the defendant in certiorari, and which proceeding to abate was brought by the latter in his own behalf, should not be dismissed on motion of the defendant in certiorari on the ground that the municipality was not made a party respondent to the writ.

The evidence being conflicting as to whether the alleged nuisance was such or not, the judgment of the court below in granting the certiorari and remanding the case for a new trial will not be disturbed.

Error from Superior Court, Fulton County; J. H. Lumpkin, Judge.

Action by the Trust Company of Georgia and others against D. J. Ray. Judgment for defendant, and plaintiffs bring error. Affirmed.

Anderson & Anderson, for plaintiffs in error.

Jno. L Hopkins & Sons, for defendant in error.

BECK J.

The plaintiffs in error, as complainants below, jointly applied to the recorder of the mayor's court of the city of Atlanta to abate as a nuisance a certain smokestack, or chimney. The application was made under section 4762 of the Civil Code of 1895, and proceeded upon the theory that there was a public nuisance specially affecting the applicants, or a private nuisance in so far as they were concerned. The recorded, after nearing the voluminous evidence introduced upon the trial, granting an order abating the nuisance, and the defendant carried the case by certiorari to the superior court where the certiorari was sustained, and the case remanded to the recorder for another trial. Before the passing of the order sustaining the certiorari, the complainants moved the court to dismiss the writ upon the ground that "the city of Atlanta was a necessary party defendant to the same; that it had not been a party defendant by the plaintiff in certiorari and had not been served with notice of sanction by the judge of the superior court of the petition for certiorari, and the time and place when and where said certiorari would be heard." And the refusal of the court to sustain this motion, as well as the order remanding the case for another trial, is attacked as error.

1. We can discover no foundation for the contention of the plaintiffs in error that the city of Atlanta should have been made a party to the certiorari proceedings taken to review and reverse the judgment in favor of the petitioners in the mayor's court. The proceeding in that court was against the alleged nuisance "in its private character." Whether the facts which constituted the nuisance made it one merely private, or one of a public character, the plaintiffs in error, when they instituted the proceedings against it in the municipal court, proceeded, as they had the right to do in their own names directly against the party maintaining the smokestack or chimney. If the nuisance was a public one merely, and no private individual suffered special damages therefrom, then the proceedings to abate the same should have been in the name of the city, acting either upon the motion of the corporate body itself, or in the name of the city upon the application of some citizen. But the complainants relying upon their right to abate the alleged nuisance as one inflicting special damage upon them, filed their petition in their own names against the defendant in error, in the municipal court--the jurisdiction of which to try the issues involved is not in dispute--to have it judicially determined and settled. The judgment of that court, once rendered and not appealed from, would be binding upon the parties to the action. The nature of this action and the right of private individuals to institute proceedings of this kind before the proper tribunal is fully discussed, with a review of numbers and authorities, in the case of S., F. & W Ry. Co. v. Gill, 118 Ga. 737, 45 S.E. 623. The proceeding that we have under consideration in the case at bar is analogous to the case just referred to, and the able discussion of the attitude of the parties there to the issues, to the public and to each other, is applicable, so far as regards those features of the case, to the matter now in hand, as will appear from the following extract from the opinion delivered in that case: "We think it is apparent from the provisions of the Civil Code upon the subject that a private citizen may proceed, in his own name and behalf, to have a public nuisance abated, if he is...