Griffin v. Loman , 206 Ga. 116 ( 1949 )

Where, to an equitable petition, praying only that the defendant be enjoined from illegally prosecuting a dispossessory proceeding against the petitioner's daughter, the defendant demurs on the ground among others that the petitioner is not a party to the dispossessory proceeding and has no rights in said case, and the court after hearing evidence enters a restraining order, and at a subsequent term overrules all grounds of demurrer, thereby leaving for future determination by a jury the issue of fact as to whether or not said daughter had been substituted as a tenant in lieu of the petitioner, the court, without hearing additional evidence and in the absence of any change in conditions, does not, on a subsequent motion to dissolve the injunction, have power to override its previous judgment on the demurrer by holding that the dispossessory proceeding against the daughter can proceed.

No. 16797. NOVEMBER 14, 1949. Alice Griffin filed in Fulton Superior Court, against Alto Loman, a petition which alleged substantially the following: Since April 1, 1944, the petitioner has been the tenant of housing accommodations at 339 Temple Street, N.W., in the City of Atlanta. She has always paid the rent due thereon, and has never subrented any part of the premises. She owns and supplied the furnishings thereof, and has been and is now living there with her family. She has at no time terminated her tenancy, and the defendant (owner) has neither notified her that he was terminating the same, nor has he given her notice of intention to evict. The defendant, with full knowledge of the fact that the petitioner is the lawful tenant, is attempting to evade the provisions of the Housing and Rent Act of 1947, as amended and extended, by taking out a dispossessory warrant against Lila Grier, a daughter of the petitioner, who is not the tenant. Equity has jurisdiction for the reasons: first, unless the dispossessory proceeding is enjoined, the petitioner will be unlawfully evicted and will thereby suffer irreparable injury; second, the defendant is insolvent and cannot be made to respond to a judgment for damages because of an unlawful eviction; third, the petitioner has no adequate remedy at law, the dispossessory proceedings having been brought in the Civil Court of Fulton County, which has no equity jurisdiction; and further, the only proper parties to dispossessory proceedings are the alleged plaintiff and defendant. The petitioner prayed that process issue, that the defendant be enjoined from prosecuting the dispossessory proceedings until the further order of court, and for general equitable relief.

The defendant demurred on the grounds: that the petition sets forth no cause of action against the defendant; that there is no privity of contract between the petitioner and the defendant; that the petitioner is not a party to the case pending in the Civil Court of Fulton County between the defendant and Lila Grier, and has no rights whatever, equitable or otherwise, in said case; that there is no relationship of tenancy between the petitioner and the defendant, and the petitioner has no grounds for complaint against the defendant.

The defendant also filed an answer contending that the petitioner, for reasons stated, was not entitled to maintain her action, and praying: that the petition be dismissed; that the Marshal of the Civil Court of Fulton County be directed to proceed with the eviction of the defendant's tenant, Lila Grier, under the dispossessory proceedings heretofore filed; and that the defendant be awarded rent for the premises from January 1, 1949, to the date of adjudication of the present case.

On March 18, 1949, the Presiding Judge of Fulton Superior Court rendered a judgment which stated: "The plaintiff, Alice Griffin, alleges the defendant, Alto Loman, has taken dispossessory proceedings against plaintiff's daughter and is about to dispossess her daughter and the furniture of plaintiff, from the premises. Plaintiff contends that she is the tenant and not the daughter, but that she, the plaintiff, cannot intervene in the dispossessory proceedings and prove the same. It seems that the plaintiff is not able to intervene in the dispossessory proceedings and set up her rights. Fitzgerald Trust Co. v.Shepard, 60 Ga. App. 674 (2) [4 S.E.2d 689]. Therefore there is equity under allegations of plaintiff's petition. Upon a hearing it appears without dispute that Alice Griffin was for many years a tenant in said premises, and that she went out of town leaving her daughter in the premises. It does not appear without dispute, however, that her daughter, Lila Grier (defendant in the dispossessory proceedings), was substituted by the landlord (defendant herein) as a tenant in lieu of Alice Griffin. The dispossessory proceedings against Lila Grier therefore are enjoined, provided Alice Griffin pays into the registry of this court the agreed rental" of $18 per month, plus an additional $10 per month to secure the defendant.

On May 23, 1949, during a subsequent term, another judge of Fulton Superior Court overruled the above-mentioned demurrers of the defendant to the petition on each and every ground.

So far as appears from the record, there were no exceptions to the interlocutory judgment, which was rendered during the March term, or to the ruling on demurrer, which was rendered during the May term. However, on June 10, 1949, the defendant filed his objection to the order passed upon the interlocutory hearing, on the ground that through inadvertence proper consideration was not given to the Code, §§ 55-108, 61-101 et seq; Kaufman Bros. Co. v. Pappas, 45 Ga. App. 479 (165 S.E. 326); FitzgeraldTrust Co. v. Shepard, 60 Ga. App. 674 (2) (supra); Ray v.Holden, 62 Ga. App. 554 (2, 5) (8 S.E.2d 703); Savage v.Weeks, 73 Ga. App. 621 (1-a, b) (37 S.E.2d 549); which had been submitted to the court. The objection contained a prayer that the interlocutory order be reconsidered, revised, and amended.

On June 17, 1949, when the above objection came on to be heard, the judge who entered the first-mentioned judgment rendered an order stating, "it appearing to the court that Lila Grier's possession of the premises is held under Alice Griffin, plaintiff, the dispossessory proceedings against Lila Grier can proceed, under the authorities above cited," and accordingly modified the interlocutory order of March 18, 1949, so as to permit the dispossessory action to proceed.

Alice Griffin excepted to this order and assigned error thereon as being contrary to law and equity. "Where a general demurrer has been heard and adjudicated, the court will not on a motion subsequently made to dissolve the injunction on the coming in of the answer, consider any objection to the bill that was properly involved in the demurrer."McGinnis v. Justices of the Inferior Court, 30 Ga. 47. See also Byrd v. Goodman, 195 Ga. 621 (2) (25 S.E.2d 34);Watson v. Lumsden, 202 Ga. 607 (1) (44 S.E.2d 231). "The rule that this court will not interfere with the discretion of the trial judge in granting or refusing an injunction where the evidence is conflicting does not apply when the question to be decided by the trial judge is one of law." Washington NationalIns. Co. v. Savannah, 196 Ga. 126 (26 S.E.2d 359).

In the present case, the equitable petition for injunction prayed only that the defendant be enjoined from illegally prosecuting a dispossessory proceeding against the petitioner's daughter. The defendant demurred on the grounds hereinbefore set forth. The court after hearing evidence entered a restraining order. At a subsequent term the court overruled all grounds of demurrer, thereby leaving for future determination by a jury the issue of fact as to whether or not said daughter (defendant in the dispossessory proceeding) had been substituted as a tenant in lieu of the petitioner.

The facts in Shackelford v. Riddling, 198 Ga. 827 (4) (33 S.E.2d 14), were similar in all respects to those of the present case. There the trial court overruled a general demurrer, and after hearing evidence, entered a restraining order leaving to future determination by a jury the issues of fact as to whether any of the timber purchased remained unremoved. Subsequently the court on motion dissolved the injunction. In reversing that judgment, this court held that the trial court did not, on a subsequent motion to dissolve the injunction, have power to override its previous judgment on demurrer by holding that, as a court of equity, it had no power, because of the alleged breach of the agreement by the defendant, to extend the time for the execution of the contract.

Applying the foregoing principles to the facts of the present case, the trial court, without hearing additional evidence and in the absence of any change in conditions, did not, on a subsequent motion to dissolve the injunction, have power to override its previous judgment on the demurrer by holding that, under the authorities cited by the defendant, the dispossessory proceeding against the daughter could proceed.

The present case differs on its facts from Lawson v.Haygood, 202 Ga. 501 (43 S.E.2d 649), where it was held that the trial court had the power during the same term of court to vacate a judgment for the purpose of considering an amendment.

Judgment reversed. All the Justices concur.