Opinion
56981.
SUBMITTED JANUARY 3, 1979.
DECIDED JANUARY 9, 1979.
Trespass, etc. Lamar Superior Court. Before Judge Whitmire.
David Friedman, for appellants.
Harvey J. Kennedy, Jr., Ham, Mills Freeman, W. Franklin Freeman, Jr., for appellee.
Plaintiffs-tenants filed this suit against their defendant-landlord for breach of quiet enjoyment, trespass, and wrongful eviction. Plaintiffs prayed for general and punitive damages and a trial by jury, as well as a restraining order, preliminary and permanent injunctions. The superior court issued a temporary restraining order and set a date to hear the motion for preliminary injunction. Plaintiffs failed to appear at this pre-trial hearing and the court granted defendant's motions to dissolve the restraining order and to dismiss the entire complaint. Plaintiffs appeal from this judgment. Held:
Plaintiffs failed to prosecute the equitable claim; the restraining order was properly dissolved, and plaintiffs do not challenge that part of the judgment. However, the complaint also sought ex delicto damages which required jury consideration, and which were not to be decided at the pre-trial hearings on the preliminary injunction. Therefore, this part of the case could not be dismissed along with the claim for equitable relief for lack of prosecution. Nix v. Nix, 138 Ga. App. 754 ( 227 S.E.2d 481).
Judgment reversed. Webb and Banke, JJ., concur.