Davison v. City of Summerville , 204 Ga. 748 ( 1949 )

The petition being one seeking injunctive relief only, and it appearing that all acts sought to be enjoined have been completed, the case is moot; and the motion to dismiss the writ of error must be sustained.

No. 16478. FEBRUARY 15, 1949. R. D. Davison, a citizen and taxpayer of the City of Summerville, sought to enjoin the City of Summerville and a named company from the laying of sewer pipes along a portion of Washington Street. It was alleged: that the company, prior to the suit, had entered into a contract with the city, and, for a number of months, under this contract had been engaged in installing an extensive sewerage system in the City of Summerville; that this contract did not include the portion of Washington Street described in the petition, but in spite of this fact the company had begun laying sewer pipes along this portion of Washington Street, which pipes were of cast iron and much more costly than terra cotta pipes, which were being used in the remainder of the city; and that "the installation of said sewer pipes by said J. B. McCrary Company is not being performed under any existing contract with the said City of Summerville, but on the contrary is being done at the personal instance and request of Willis James, Mayor of the City of Summerville." The petition prayed for the following relief only: (a) that the defendants be temporarily and permanently "enjoined from installing said sewer pipes on said street"; (b) that the City of Summerville be temporarily and permanently enjoined "from paying the said J. B. McCrary Company any sum whatsoever for the installation of said sewer pipes"; (c) general relief.

Error is assigned on a judgment sustaining what was denominated a "plea to the jurisdiction" and dismissing the petition.

The defendant in error filed a motion to dismiss the writ of error on the ground that the case has become moot, it being alleged that the acts sought to be enjoined, the installation of sewer pipes on a designated street and the payment therefor by the City of Summerville, have been completed. This motion is supported by affidavits. No response, as such, was filed by the plaintiff in error, but in a brief on the motion to dismiss, it was stated in behalf of the plaintiff in error: "The petition distinctly alleges that the work being done was under an illegal contract, and that unless restrained and enjoined the City of Summerville would pay the contractors for the work done, and sought an injunction against the work proceeding further, and also against the City of Summerville from paying out the money therefor. Thus it will be seen that the question is distinctly raised as to the legality of the contract and as to whether or not the City of Summerville could legally pay the money." There was no denial of the allegations of fact contained in the motion to dismiss. The statements contained in the motion to dismiss, not being denied, will be taken as true. Smith v.Jeffries, 188 Ga. 649 (4 S.E.2d 637).

The petition prays only for an injunction and general relief. All the acts sought to be enjoined have been completed. Accordingly, a reversal of the judgment complained of would be ineffectual, and the case has become moot. Brockett v.Maxwell, 200 Ga. 38 (35 S.E.2d 906), and cit.; Hobbs v.Howell, 204 Ga. 370 (49 S.E.2d 827).

On the motion to dismiss it is contended by the plaintiff in error that the petition raised a question as to the validity of a contract, and that the writ of error should be retained for the purpose of passing upon this question. Counsel for the plaintiff in error have misconstrued the petition, which does not allege the invalidity of a contract, but on the contrary alleges that the acts sought to be enjoined are illegal because the defendants have entered into no contract. However, this statement is not intended as an intimation that the construction placed upon the petition by counsel, if correct, would afford any reason for a different disposition of the case than that here made.

Practically every petition seeking an injunction is based upon the allegation that the acts sought to be enjoined are illegal; but where such acts have been completed, and the sole relief sought is an injunction against the commission of the alleged illegal acts, this court will not retain the writ of error merely for the purpose of determining whether the acts were in fact illegal. Writs of error will not be retained by this court to decide abstract questions. Samuels v. Lanford, 149 Ga. 167 (99 S.E. 532). This case is controlled, in principle, byAbernathy v. Dorsey, 189 Ga. 72 (5 S.E.2d 39), where, in answer to a motion to dismiss based on the ground that an election sought to be enjoined had been held, the plaintiffs in error contended that they would "derive much and lasting benefits" from an adjudication that there was "no legal authority to hold the election." This court held: "The only question and subject-matter of the case having become moot by the actual holding of the election, the mere fact that the plaintiffs might possibly derive some future benefit from a favorable adjudication on the abstract question, or that a decision would settle the question of costs, will not authorize this court to retain and decide the case." See also Waldron v. Atlanta, 167 Ga. 620 (146 S.E. 318).

Writ of error dismissed. All the Justices concur.