Opinion
22432.
ARGUED APRIL 14, 1964.
DECIDED MAY 7, 1964.
Injunction. DeKalb Superior Court. Before Judge Hubert.
Nall, Miller, Cadenhead Dennis, Donald M. Fain, Lynn Downey, for plaintiff in error.
Ben S. Atkins, contra.
The petition stated a cause of action for injunctive relief to prevent a repetition of the wrong committed by the defendant in burying some person in the cemetery lot wherein the petitioners owned exclusive burial rights.
ARGUED APRIL 14, 1964 — DECIDED MAY 7, 1964.
Mr. and Mrs. Elmer L. Moody filed their petition against Resthaven Memorial Gardens, Inc. In so far as material here, it was alleged: The petitioners purchased from the defendant a described cemetery lot, and two named sisters of Mrs. Moody and their husbands purchased adjoining lots. Because of the great love and affection of the sisters the purchases were made so that they could "be together even after their death." Neither of the described lots would have been purchased unless the other two lots could have been purchased by the side of the others. The defendant, without regard to the feelings and affections of the petitioners, entered upon the petitioners' lot and wilfully, wantonly, and maliciously buried some person in one of the four spaces for graves located on the petitioners' lot, in which they owned exclusive right of burial, and thereby rendered the other spaces useless and of no value. The prayers were: for process; that the defendant be enjoined from burying other persons in the petitioners' lot; for damages; and for other relief.
A temporary restraining order was granted on April 18, 1963. When the cause came on for a hearing on the grant of an interlocutory injunction, on January 21, 1964, the defendant made an oral motion to dissolve the restraining order previously granted, and deny the prayer for an interlocutory injunction, on the ground that the petition failed to set forth any basis upon which an injunction should be granted. The defendant excepts to the "order denying said motion" and to the order of the court granting an interlocutory injunction.
The oral motion of the defendant, contending that the petition failed to state any ground for injunction, was properly denied. The uncertainty of life, and the certainty of death, may quite properly invoke thoughts of some choice in the selection of a spot under a wide and starry sky as a final resting place, where peace shall continue until time shall be no more. That the petitioners had selected such a spot and acquired the exclusive right of its use is not in issue here. The fact that the petitioners may recover damages from the defendant for the wrong already committed ( Jacobus v. Congregation of the children of Israel, 107 Ga. 518, 33 S.E. 853, 73 ASR 141; Wright v. Hollywood Cemetery Corp., 112 Ga. 884, 38 S.E. 94, 52 LRA 621; O'Neal v. Veazey, 143 Ga. 291, 84 S.E. 962; Hale v. Hale, 199 Ga. 150, 33 S.E.2d 441) will not defeat their right to injunctive relief to prevent a repetition of the wrong.
The judgment of the trial judge granting the interlocutory injunction recites that he acted after hearing evidence. The bill of exceptions does not specify a brief of the evidence as material to any alleged error, and no brief of the evidence appears in the record. No question can therefore be determined which requires a consideration of the evidence.
Judgment affirmed. All the Justices concur.