Thompson v. Westmoreland

Full title: THOMPSON v. WESTMORELAND et al. (two cases)

Court: Supreme Court of Georgia

Date published: Oct 25, 1977

239 S.E.2d 379 (Ga. 1977)

239 S.E.2d 379

Opinion

32763, 32764.

SUBMITTED SEPTEMBER 16, 1977.

DECIDED OCTOBER 25, 1977.

Injunction, etc. Cobb Superior Court. Before Judge Ravan.

B. Wayne Phillips, for appellant.

Jimmy D. Berry, for appellees.

HALL, Justice.

These two cases involve the same dispute, between the same parties, and were decided together below. Therefore, we consolidate them for decision. The affirmance of 32764 renders 32763 moot.

In this land line dispute appellees filed two lawsuits at different times to enjoin appellant from trespassing on appellees' right-of-way, and from interfering with appellees' use of the right-of-way. The judgment in 32763 involved only the location of the land lines. In 32764, the court adopted in toto the findings of fact and conclusions of law in number 32763, and went on to enjoin any further trespass.

Appellant's sole enumeration of error in 32764 is that it was erroneous to adopt the findings in 32763, because the judgment in the latter case was in error. The judgment in 32763 is said to be in error because the plaintiffs allegedly had voluntarily dismissed that suit prior to the judgment. Even assuming that the judgment in 32763 was entered after dismissal of that case, this does not invalidate the judgment in 32764. Both cases were tried by the same judge, and were decided together. The order in 32764 was entered after a hearing, and was based on the evidence, thus it stands by itself whether or not 32763 was dismissed. By adopting the findings of fact and conclusions of law of 32763 as part of the judgment in 32764, the court made those findings part of the judgment in the latter case just as effectively as if they had been set out again. Thus, the judgment in 32764 mooted any issue as to whether 32763 was dismissed before judgment, since all of the findings stand as part of 32764.

Appellant's remaining enumerations of error also pertain to 32763. Assuming these enumerations are not mooted by the judgment in 32764, they are nevertheless without merit.

Judgment affirmed in 32764; appeal dismissed as moot in 32763. All the Justices concur.

HALL, Justice.

SUBMITTED SEPTEMBER 16, 1977 — DECIDED OCTOBER 25, 1977.