City of Cedartown v. Pickett , 194 Ga. 508 ( 1942 )

1. The judgment which it is sought to review by direct bill of exceptions is one granting a stay of proceedings in behalf of the plaintiff in an equity suit, on the ground that he is in the military service of the United States, under the soldiers and sailors civil relief act of 1940. The judgment is final on the question of a stay of proceedings, and as such is reviewable by direct bill of exceptions. The motion to dismiss the writ of error, on the ground that it is premature, is denied.

2. Where a writ of error from a judgment overruling demurrers to a petition and granting a temporary injunction is pending in the Supreme Court, but no supersedeas has been obtained, the trial court has jurisdiction to receive and pass upon an application for a stay of the proceedings in that court, as provided under the soldiers and sailors civil relief act of 1940.

3. A stay of proceedings under that act should not be granted without giving the opposite party notice and allowing him an opportunity to be heard. The stay order here complained of was granted without such notice and opportunity to be heard, and therefore it was invalid. The order was invalid for the further reason that the act in question does not authorize a stay of proceedings which would have the effect of perpetuating a condition which has been finally adjudged to constitute a public nuisance.

No. 14264. SEPTEMBER 21, 1942. J. P. Pickett brought a suit in equity against the City of Cedartown and others, seeking to enjoin the defendants from enforcing an order by the city commission adjudging as a nuisance a business or situation maintained by Pickett in the city, and ordering him to abate the same within thirty days. The defendants filed general demurrers and an answer to the petition. The demurrers were overruled; and after hearing evidence and arguments, an interlocutory injunction was granted, to which ruling the defendants excepted. Both of the rulings excepted to were reversed by the Supreme Court. City of Cedartown v. Pickett, 193 Ga. 840 (20 S.E.2d 263). Pickett filed in the Supreme Court a motion for rehearing, which was denied on May 20, 1942. On May 22, 1942, Pickett filed, in the superior court in which the original action was brought, a petition or application against the city and the other defendants, in which he alleged, that he was in the military service of the United States; that on February 18, 1942, by special order, he was ordered to report to Fort Oglethorpe; and that upon reporting on that date he became active in the United States Army. Paragraph 2 of the application asserted: "He further shows that this case is now pending in the Supreme Court of Georgia, but the remittitur has not been transmitted by that court to the clerk of the superior court of Polk County, Georgia, but that upon said remittitur reaching the superior court of Polk County, Georgia, a judgment will be taken thereon, making the judgment of the Supreme Court the judgment of the superior court of Polk County, Georgia, upon which the clerk of the City of Cedartown will issue a writ directed to the sheriff of Polk County and marshal of the City of Cedartown, directing them to remove the place of business at the expense of your petitioner." It was further asserted that the applicant's ability to comply with the order of the city to remove his business had been materially affected by reason of his military service. He prayed, that the defendants be enjoined from issuing a writ directed to the sheriff and marshal to abate the plaintiff's business as a nuisance, and that the city and its officials be restrained from enforcing the order of the city commission to abate the alleged nuisance; that the clerk of the superior court be enjoined from entering an order on the remittitur from the Supreme Court; that all proceedings in the case be stayed for the duration of the military service of the petitioner and for sixty days after the termination thereof, as provided by the soldiers and sailors relief act of 1940 (50 U.S.C.A. § 523).

Upon presentation of the plaintiff's application to Judge Porter (Judge Mundy being disqualified) on May 22, 1942, the judge, without notice to the defendants and without any provision for further hearing, entered the following ex parte order: "The foregoing petition of J. P. Pickett having been read and considered, let the same be filed and made a part of the record in this proceeding. It is ordered and adjudged that all proceedings in this case by all persons or parties thereto be stayed as provided by title 50, sections 510, 521 and 523, U.S.C.A., which provisions are contained in the act of Congress commonly referred to as the soldiers and sailors civil relief act for 1940, it having been made to appear to the court that J. P. Pickett is now in active duty of the armed forces of the United States. And it is further ordered that the City of Cedartown, the city manager of the City of Cedartown, and the clerk of said City of Cedartown be restrained from any enforcement of the order of the City Commission of Cedartown, entered on November 6, 1941, directing J. P. Pickett to remove his place of business complained of within thirty days, and that the clerk of said City of Cedartown be restrained from issuing any writ directed to the sheriff of Polk County, Georgia, or a marshal of the City of Cedartown, directing the abatement or removal of such place of business. And it is further ordered that no order be entered on the remittitur from the Supreme Court of the State of Georgia to make the judgment of that court the judgment of the superior court of Polk County, Georgia. Let a copy of the petition and this order be served upon each and all the defendants in this proceeding instanter."

The defendants excepted to this judgment. From the record it appears that the remittitur from the Supreme Court referred to above was dated May 23, 1942, and was filed in the office of the clerk of the superior court on May 25, 1942. 1. The defendant in error moved to dismiss the writ of error, on the ground that the case is still pending in the court below, no final judgment having been rendered therein, and that the bill of exceptions is premature, because the judgment excepted to is not a final judgment. Cited in support of this motion is 50 U.S.C.A. § 582, as follows: "Any interlocutory order made by any court under the provisions of this act may, upon the court's own motion or otherwise, be revoked, modified, or extended by it upon such notice to the parties affected as it may require." Also cited are the following decisions of this court: Ivey v. Rome, 126 Ga. 806 (55 S.E. 1034), Dorminey v. Moore, 144 Ga. 207 (86 S.E. 536),Kennedy v. Edenfield, 159 Ga. 816 (126 S.E. 779), Crider v. Holbrook, 169 Ga. 765 (151 S.E. 505), and Grizzel v. Grizzel, 188 Ga. 418 (3 S.E.2d 649), in which it was ruled that a direct bill of exceptions will not lie to an order granting a temporary restraining order; and certain Code sections relating to that question. It is argued that since the order here excepted to was rendered ex parte, without notice and an opportunity to be heard, it should be put in the same class as a restraining order, and not in the class with an interlocutory injunction, which is granted only after notice and a hearing. The weakness of this argument lies in the fact that the order excepted to is an unconditional grant of the relief provided for by the Federal statute; and although the trial judge granted the order without requiring notice and allowing an opportunity to be heard, as he should have done under the law, this does not change the nature of the judgment, but goes only to the validity of the judgment. The judgment is final as to the subject-matter with which it deals, to wit: stay of proceedings as provided by the statute. No further ruling or judgment is necessary or required by law to give full force and effect to this provision of the statute; and the opposite party had to choose between: (1) abiding by that judgment, or (2) obtaining a review thereof by a bill of exceptions. No case is left pending, in so far as the case is made by the application for a stay of proceedings; and in this respect the judgment is the same as an interlocutory injunction and may be reviewed by a direct bill of exceptions. Mendenhall v. Stovall, 191 Ga. 452 (12 S.E.2d 589). The motion to dismiss is overruled.

2. Under the soldiers and sailors civil relief act of 1940 (50 U.S.C.A. § 521), it is provided that actions or proceedings in any court in which a person in military service is involved, either as plaintiff or defendant, shall at any time be stayed on application of such person to that court, unless in the opinion of the court the ability of such person to protect his rights in the action is not materially affected by reason of his military service. The plaintiff in error insists that by virtue of the ruling in Edwards v. State, 125 Ga. 5 (53 S.E. 579), andBoard of Commissioners v. Municipal Securities Corporation,161 Ga. 634 (131 S.E. 495) (to the effect that, from the time the bill of exceptions is signed by the judge until the remittitur from the Supreme Court is returned to the trial court, the trial court has no jurisdiction of the case), the trial judge was without jurisdiction to pass the stay order here complained of, because at that time the case was in the Supreme Court on exceptions to the overruling of the general demurrer and the grant of an interlocutory injunction. In the condition of the record as it appears in this court, this contention can not be sustained. It does not appear that a supersedeas was obtained as provided in the Code, §§ 6-1002, 55-202. In the absence of such a supersedeas, the trial court might legally have proceeded with the trial of the case, subject to the ruling which the Supreme Court might make on the demurrer.Cummings v. Clegg, 82 Ga. 763 (9 S.E. 1042); Montgomery v. King, 125 Ga. 388 (54 S.E. 135); Bandy v. Frierson,138 Ga. 515 (75 S.E. 626); Massachusetts Bonding InsuranceCo. v. Realty Trust Co., 139 Ga. 180 (77 S.E. 86);Armstrong v. American National Bank, 144 Ga. 245 (86 S.E. 1087); Thompson v. Webb, 145 Ga. 129 (88 S.E. 684). It must be held that the case was pending in the trial court, and that the application for a stay was addressed to the proper court.

3. The judgment complained of was granted ex parte, without notice to the opposite party and without affording the opposite party an opportunity to be heard. It is true that the statute under which the application for a stay was brought makes no specific requirement as to notice and service, but the absence of such requirement in the statute does not remove the necessity for such notice. Indeed if the statute required a construction that service upon the opposite party and an opportunity to be heard were not authorized thereunder, then it would have to be held invalid because of this fact. Valuable rights can not be taken away by the courts of this land without notice and an opportunity to be heard. The due-process clause of the fourteenth amendment guarantees such notice and opportunity to be heard. The stay order excepted to must be held invalid, because it was issued ex parte without notice to the opposite party. We think the stay order is invalid for the further reason that the statute under which the application was brought was not intended to apply in a case like the present. Although the language of the statute is general and is unambiguous and is all-embracing, in that it says any action or proceeding may be stayed, it was not intended to serve as an instrument by which one in military service may endanger the peace, the health, and the lives of the people by staying any proceeding brought for the purpose of protecting the general public. In Brooks v.Brooks, 185 Ga. 549, 554 (195 S.E. 869), it was said: "A court should never by construction add to, take from, or vary the meaning of unambiguous words in a statute. But the difference between application and construction should be kept before us. Such a distinction Mr. Justice Field had in mind, when, in delivering the opinion of the Supreme Court of the United States in the case of United States v. Kirby, 74 U.S. 482, 486-7 (19 L. ed. 278), he said: ``All laws should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. It will always, therefore, be presumed that the legislature intended exceptions to its language which would avoid results of this character. The reason of the law in such cases should prevail over its letter.'" We are merely deciding that the terms of the statute here involved will not be applied, and were not intended by the Congress to be applied, where the man in military service is seeking to prevent the abatement of a condition which has been adjudged a common nuisance. It would be disappointing to most of those patriotic Americans now engaged in military service to know that by virtue of this statute public nuisances endangering the health and lives of the people back home were being perpetuated by a stay of proceedings to abate the same. The Congress of the United States could not enact a statute legalizing public nuisances throughout the land, nor could it enact a valid statute that would have this effect by staying any proceeding designed for the purpose of abating such public nuisance. It is observed that in the present case the proper authorities of the City of Cedartown, in a proceeding in which the defendant in error participated, adjudged the place in question to constitute a public nuisance, and ordered its abatement. From that judgment no appeal was taken, and it became binding upon all parties and constitutes an adjudication of the fact that the place is a public nuisance, all of which took place before the entry of the defendant in error into the military service of the United States.

Judgment reversed. All the Justices concur.