Opinion
27310.
SUBMITTED JULY 11, 1972.
DECIDED OCTOBER 5, 1972.
Injunction. DeKalb Superior Court. Before Judge Morgan.
Fine Block, Craig R. Goodman, for appellant.
Stanley H. Nylen, Hendon Henley, J. W. Moulton, for appellees.
1. The motion to dismiss the appeal is without merit.
2. The trial judge erred in refusing to stay the proceedings in an inferior court of limited jurisdiction.
SUBMITTED JULY 11, 1972 — DECIDED OCTOBER 5, 1972.
Barber, a resident of DeKalb County, commenced an action in a court of limited jurisdiction in DeKalb County on September 3, 1971, against Robertson, also a resident of DeKalb County, alleging that on January 9, 1971, he was operating a Buick automobile on Interstate 20, that he slowed his vehicle to avoid striking a vehicle parked on the inside lane on which the operator was changing a tire, and that Robertson was operating a Dodge automobile which struck his Buick automobile in the rear, projecting it into the path of another vehicle. He claimed that Robertson's negligence was the sole cause of his property damage and loss. Robertson's answer alleges that Huff caused the loss, and Huff is elsewhere identified as the operator of the parked vehicle, and as a resident of Fulton County.
Robertson submitted a motion to a judge of DeKalb Superior Court on February 17, 1972, seeking a stay in the above proceedings alleging that he had prepared a complaint against Barber and Huff to be filed in DeKalb Superior Court based on the incident of January 9, 1971, that he would be unable to obtain jurisdiction over Huff as a third party defendant in the action pending in the inferior court, and that a stay would prevent a multiplicity of actions. He argued in his brief in support of the motion that his complaint included a claim for personal injuries which the inferior court could not adjudicate and that "only the Superior Court of DeKalb County can adjudicate all matters." The judge ordered the motion filed, issued a rule nisi, and granted a temporary stay pending a hearing on the motion. The following day Robertson filed the motion and his complaint, naming Barber and Huff as defendants, and alleging their negligence as the cause of his property damage and personal injuries. Both defendants were served, and both defendants filed timely answers. Barber also filed a counterclaim against Robertson.
Following a hearing on the motion the trial judge on March 30, 1972, declined to continue a stay of the proceedings pending in the inferior court. Robertson then appealed to this court. Barber has filed a motion to dismiss the appeal as moot, and in support thereof shows that the action in the inferior court proceeded to judgment on June 20, 1972, in his favor against Robertson for $2,250 and that Robertson filed a notice of appeal to the Court of Appeals on July 20, 1972.
1. It affirmatively appearing from the motion to dismiss that the litigation which Robertson sought to stay has not been concluded, in view of the notice of appeal filed by Robertson in that case, the present appeal does not involve a moot issue. Instead, under the facts as shown to this court the ultimate disposition of the other litigation is dependent upon the action in the superior court based on the ruling in Division 2 of this opinion. The motion to dismiss the present appeal is without merit.
2. The dilemma here shown is by no means novel. While Code § 55-108 recognizes generally that the granting and continuing of injunctions shall always be in the sound discretion of the judge, and this court has time and again ruled that there must be a manifest abuse of that discretion to support reversal, there are situations which clearly demand a stay in the proceedings of a court of law, and thus warrant reversal unless the trial judge had granted injunctive relief. See annotations, Code § 55-103. In affirming the trial judge who did provide injunctive relief in a situation similar to the present case, the late Chief Justice Reid had this to say: "The claims of the parties ... arose out of the same collision. The claim of Otis is for property damage to his automobile, for which he brought suit in the Civil Court of Fulton County. The claim of Cheeves is for personal injuries. Due to the fact that the Civil Court of Fulton County is a court of limited jurisdiction and has no authority to entertain an action for personal injuries, Cheeves could not set up his claim for personal injuries by way of cross action to the suit brought by Otis in the civil court. In such case, under the rulings of the above-cited cases [referring to Kirkpatrick v. Holland, 148 Ga. 708 ( 98 S.E. 265); Smith v. Wood, 167 Ga. 630 ( 146 S.E. 441); Massachusetts Bonding c. Ins. Co. v. Lowenstein Investment Co., 152 Ga. 299 ( 109 S.E. 902)], it was the undoubted right of Cheeves to bring suit in the superior court to recover damages for his personal injuries, and to have the prosecution of the suit in the civil court enjoined, and require that the controversy between the parties be adjudicated in that action." Otis v. Graham Paper Co., 188 Ga. 778, 781 ( 4 S.E.2d 824, 125 ALR 333). Also, see Carswell v. Scott, 225 Ga. 798 ( 171 S.E.2d 499), and annotation, 125 ALR 337.
Judgment reversed. All the Justices concur.