Wilkerson v. Chattahoochee Parks, Inc.
| Decision Date | 16 October 1979 |
| Docket Number | No. 35255,35255 |
| Citation | 260 S.E.2d 867,244 Ga. 472 |
| Parties | WILKERSON et al. v. CHATTAHOOCHEE PARKS, INC. |
| Court | Georgia Supreme Court |
Joseph E. Wilkerson, Atlanta, for appellants.
Sartain & Carey, W. Allen Myers, Jack M. Carey, Gainesville, for appellee.
The appellants leased two houseboat spaces from the appellee for a term of one year. During the term of the lease, the appellee informed the appellants that the lease was being terminated under the provisions of Paragraph 11, which provide that "discord or indecorous conduct by lessee, his family or his visitors, which may, In the sole discretion of lessor, result in injury to a person, cause damage to property, Or harm the reputation of the marina shall be cause for Immediate cancellation of this lease by lessor." (Emphasis supplied.) The appellants filed suit for a temporary restraining order, which was granted. A rule nisi hearing was scheduled for June 11, 1979. On May 25, the appellee filed its answer, and also a counterclaim to dissolve the t. r. o. and to order the appellants to remove their houseboats from the appellee's premises. Following the hearing, the trial court entered an order on June 12 granting the prayers for relief in the appellee's counterclaim, from which order this appeal is taken.
1. The appellee has moved to dismiss the appeal as moot, on the ground that no supersedeas or injunction pending appeal was obtained and the appellants have voluntarily performed the act they sought to enjoin, i. e., the removal of their houseboats from the appellee's marina. See, e. g., Crim v. Sorrow, 243 Ga. 477, 255 S.E.2d 19 (1979); Faulkner v. Ga. Power Co., 241 Ga. 618, 247 S.E.2d 80 (1978) and cits.; Douglas County v. Hasty, 237 Ga. 646, 229 S.E.2d 435 (1976) and cit. Such cases are not applicable here, however, where the appellants filed an extraordinary motion for supersedeas with this court, which was denied, and where the appellants filed an answer alleging that their removal of the houseboats was not done voluntarily, but to prevent a further breach of the peace and to prevent further damages to the houseboats. The motion to dismiss is denied.
2. The trial court did not err in advancing and consolidating the trial of the action on the merits with the hearing on the appellants' application for an interlocutory injunction without prior notice to the parties. Code Ann. § 81A-165(a)(2) () permits this action "after the commencement of the hearing." While § 81A-165(a)(1) provides, "No interlocutory injunction shall be issued without notice to the adverse party," the appellants were on notice of the hearing. In addition, the appellants did not object at trial to the trial judge's hearing the merits of the case at the interlocutory injunction hearing.
3. The appellants contend that it was error to order their houseboats removed from the appellee's premises, because the only procedure by which a landlord can evict a tenant is under Code Ch. 61-3, "Proceedings against tenants holding over."
' Colonial Self Storage etc., Inc. v. Concord Properties, Inc., 147 Ga.App. 493, 495, 249 S.E.2d 310, 311 (1978). No contention is made in the present case that the slips or spaces in the marina, or even the houseboats docked there, were to be, or were in fact, used as dwelling places.
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