Opinion
17954.
ARGUED SEPTEMBER 9, 1952.
DECIDED NOVEMBER 13, 1952.
Petition for injunction. Before Judge Guess. DeKalb Superior Court. May 26, 1952.
Robert W. Spears, Wm. G. Grant and Grant, Wiggins, Grizzard Smith, for plaintiff in error.
McCurdy Candler and J. Robin Harris, contra.
It appearing that, since the refusal of the injunction in the original hearing in this case, the defendant had done all that was sought to be enjoined, no supersedeas having been granted, the trial court did not err in sustaining the defendant's objection to the plaintiff's amendment, on the ground that all issues had become moot, and in dismissing the action.
No. 17954. ARGUED SEPTEMBER 9, 1952. — DECIDED NOVEMBER 13, 1952.
This case was previously before the Supreme Court. Blackwell v. Farrar, 208 Ga. 757 ( 69 S.E.2d 574).
M. Earl Blackwell brought a proceeding seeking to enjoin Robert H. Farrar from erecting an apartment house in Avondale Estates. Farrar filed an answer admitting that he was erecting the apartment house, but averring that he had complied with the restrictive covenants, which provided that they should continue in force for 25 years from January 1, 1925, and then provided the manner in which the restrictions could be changed. After hearing evidence, the trial court entered a judgment denying an interlocutory injunction. The Supreme Court affirmed the judgment denying the prayer for injunctive relief.
After the remittitur of this court had been made the judgment of the trial court, Blackwell offered an amendment to his petition, which was allowed filed subject to objection and demurrer. Farrar objected to the allowance of the amendment upon the ground, among others, "defendant shows that, since no supersedeas was obtained or even sought, defendant has now completed the apartment, construction of which was sought to be enjoined, and that, therefore, all questions raised by the pleadings in said case have now become moot." The exception is to an order sustaining the above ground of defendant's objection, and dismissing the action.
Ordinarily injunction will not be granted to restrain acts already completed. Code, § 55-110; Shurley v. Black, 156 Ga. 683 (2a) ( 119 S.E. 618). The prayer of the plaintiff in his original petition was that the defendant be enjoined "from erecting an apartment house on the lots owned by him hereinabove described and from using said lots in violation of the building restrictions thereon." The only violation set forth in the original petition was that the defendant was erecting an apartment house. Under a proper construction the additional words of the prayer, "and from using said lots in violation of the building restrictions," have reference to a violation of the building restrictions by the erection of an apartment house. Compare Jordan v. Orr, 209 Ga. 161 (1b) ( 71 S.E.2d 706).
It appearing that, since the refusal of the injunction in the original hearing in this case, the defendant had done all that was sought to be enjoined, no supersedeas having been granted, the trial court did not err in sustaining the defendant's objection to the plaintiff's amendment, on the ground that all issues had become moot, and in dismissing the action. However, direction is given that, before the remittitur from this court is made the judgment of the trial court, the trial judge shall add to the order dismissing the plaintiff's petition a provision that such dismissal shall be without prejudice to any other rights of the plaintiff. Gallaher v. Schneider, 110 Ga. 322 ( 35 S.E. 321); Fletcher v. Harper, 135 Ga. 404 (1) ( 69 S.E. 562); Bigham v. Yundt, 158 Ga. 600 (2) ( 123 S.E. 870); Waldron v. City of Atlanta, 167 Ga. 620 ( 146 S.E. 318); Georgia Power Co. v. City of Rome, 172 Ga. 14, 31 ( 157 S.E. 283); Hapeville-Block Inc. v. Walker, 204 Ga. 462 ( 50 S.E.2d 9).
The instant case, not involving a nuisance, is distinguished on its facts from Hendricks v. Jackson, 143 Ga. 106 ( 84 S.E. 440), relied on by the plaintiff.
Judgment affirmed with direction. All the Justices concur, except Candler, J., disqualified.