Opinion
18831.
ARGUED JANUARY 12, 1955.
DECIDED FEBRUARY 17, 1955. REHEARING DENIED MARCH 16, 1955.
Injunction. Before Judge Whitman. Fulton Superior Court. September 2, 1954.
F. L. Breen, for plaintiff in error.
J. Kurt Holland, Haas, Holland Blackshear, M. H. Blackshear, Jr., contra.
1. It was not error for the trial court to exclude certain affidavits made by the defendant, for the reason that the affidavits contained hearsay and irrelevant and immaterial matter, and were argumentative. Young v. Young, 209 Ga. 711 (3) ( 75 S.E.2d 433). and citations therein.
2. Where, as here, the judgments denying the defendant's motion to dismiss, and overruling her general and special grounds of demurrer, were rendered on July 2, 1951, to which rulings no exceptions were filed, since the rulings complained of were made more than two years prior to the passage of the act approved December 22, 1953 (Ga. L. 1953, Nov.-Dec. Sess., pp. 440, 453), abolishing exceptions pendente life in cause then or thereafter pending, its provisions were not applicable, and accordingly the exceptions to such rulings contained in the bill of exceptions, presented more than three years after the date of the rulings complained of, were too late to present any question for consideration. Hannah v. Kenny, 210 Ga. 824 (2) ( 83 S.E.2d 1).
3. Irrespective of the inherent power of a court of equity to enforce its decrees — as to which see 31 Am. Jur. 363, § 882, 30 C. J. S. 1016, § 618 (a) — the judgment overruling the defendant's demurrer that was interposed to the petitioner's motion to enforce the decree became the law of this case.
4. Under the pleadings and evidence, introduced at the hearings on the motion to enforce the decree of May 5, 1951, to the effect that, after rendition of the prior decree, the defendant committed acts which, though contended to be remedial, created conditions equally aggravating or worse than the wrong originally enjoined, the trial court did not err in the decree of September 2, 1954, which permanently enjoined the defendant from causing or permitting the discharge of any surface water from her real property upon the real property of the petitioner, under the physical conditions and at the locality within the scope of the above-mentioned acts, the criticism being that the decree was mandatory in character. See, in this connection, Rinzler v. Hunter, 209 Ga. 553 ( 74 S.E.2d 665).
Judgment affirmed. All the Justices concur.
ARGUED JANUARY 12, 1955 — DECIDED FEBRUARY 17, 1955 — REHEARING DENIED MARCH 16, 1955.
Lee Myers filed in Fulton Superior Court, against Mrs. Frances H. Levin, a petition to enjoin the defendant from causing the discharge of surface water from her realty upon land of the petitioner, at a point on the western boundary line of the defendant's property and the east boundary line of the petitioner's property, sixty-six feet south of the sidewalk line on the south side of Peachtree Battle Avenue, and to recover damages therefor. By her answer in the nature of a cross-petition, the defendant sought similar injunctive relief and damages against the petitioner.
Following a special verdict of the jury, the trial court on May 5, 1951, entered a decree which, in relation to the relief sought by the petitioner, permanently enjoined the defendant from causing or permitting the discharge of surface water from her real property upon the real property of the petitioner in a greater quantity or in a manner different in volume or course, at the locality in question, from that in which the water would have been received by the petitioner's property if it had simply run down upon it from the defendant's property by the law of gravitation as natural flow or drainage. This decree, which also granted injunctive relief and damages against the petitioner, allowed each of the parties 60 days to take necessary steps to comply with and effectuate the injunctions granted against them, and retained jurisdiction for the purpose of such other and further orders as might be necessary or appropriate for the enforcement of the injunctions.
On June 21, 1951 — which was within the sixty days allowed to effectuate the decree — the petitioner filed a motion wherein it was alleged in part that, following the entry of the decree of May 5, 1951, the defendant filled the notch or gap in the coping on top of her driveway and wall, at the locality in question, but that she cut or caused to be cut some seven or eight new holes at various places along the coping, which action aggravated, rather than remedied, the alleged existing nuisance. The petitioner prayed for such further decree as would prevent the defendant from collecting and discharging surface water in concentrated form upon his property. To the above motion the defendant filed her motion to dismiss, and also filed general and special demurrers, which were overruled on July 2, 1951. So far as appears from the record, no exceptions pendente lite were filed to the above rulings.
Thereupon extensive hearings were had, both on affidavits, oral testimony, and documentary evidence, during the course of which it was shown that the coping was completely removed on July 13, 1953; and further hearings on the effect of such removal were had, to and through August 11, 1953, in the course of which much expert testimony was offered by each side. There was also evidence that the acts of the defendant in removing the entire coping, though contended to be remedial or so intended, were as a matter of fact not only not remedial, but created conditions equally aggravating or even worse than the wrong originally enjoined, and that it was impossible for surface water to be discharged from defendant's property upon the plaintiff's property, under the physical conditions and at the locality in question, except in quantity.
On September 2, 1954, the trial court entered a decree wherein the preliminary proceedings and rulings thereon were set forth, and which permanently enjoined the defendant "from causing or permitting the discharge of any surface water from defendant's real property to, onto, over or upon the real property of plaintiff under the physical conditions and at said locality or any part of said locality and within the scope thereof."
The defendant assigned error in a direct bill of exceptions, upon the ground that the decree of September 2, 1954, and an appendix thereto of the same date, were contrary to law, contrary to equity, and an abuse of discretion, in that the decree was mandatory in nature; also that the trial court should have sustained the defendant's motion to dismiss and her general and special demurrers that were interposed to the petitioner's motion to enforce the prior decree, and should have admitted in evidence certain of the defendant's affidavits.