Per Curiam.
This appeal is from the grant of what is denominated a judgment on the pleadings, which dismissed a petition attacking the rezoning of property.
' The petition was filed in the Superior Court of Hall County by Norton Realty & Loan Company, Inc., and two of its officers and stockholders against the City of Gainesville and its commissioners. The petition is in two counts, but only Count 1 is involved here since the enumerations of error relate exclusively to it.
The allegations of that count, insofar as necessary to recite, are those which follow.
The corporate plaintiff is the owner of Lots 30, 31, 32, and 33 of a named subdivision within the city. On January 25, 1962, it purchased this and other property comprising an 18-acre tract fronting on U. S. Highway 129.
Prior to said purchase and continuing to the effective date of the rezoning ordinance in question this tract was zoned R-II, which permits development and construction of multi-family residences, including apartments. Also, prior to such purchase plaintiffs conferred with named city officials and from them received certain assurances and approvals, including that this tract was zoned R-II, and that it could be developed as a residential subdivision in accordance with plans and specifications proposed by the plaintiffs.
[167]*167Before purchasing the 18-acre tract plaintiffs determined that, because of the grade level of the four lots now in question, which front on U. S. Highway 129, they could not be developed as single family residential dwelling lots and must remain zoned R-II for possible future sale and development as duplexes, town houses or apartments. Thus, plaintiffs purchased said tract for development partly as a restricted residential subdivision and partly as possible multi-family units as permitted under R-II zoning. This dual plan of development was approved by and considered good land use and planning practices by the planning commission of the city.
Plaintiffs have expended over $75,000 in cash and development time and efforts. They surveyed and contracted for a street through the tract, prepared a restrictive covenant agreement for the subdivision which expressly excluded the four lots involved here, thereby leaving them to be developed as permitted under R-II zoning, and upon completion of paving and water system and approval of the city, began in March 1964 the sale of residential lots in the subdivision. In considering the possible use and development of the four lots prior to such purchase, plaintiffs would not have purchased the 18-acre tract and would not have made said expenditures unless they had known that the four lots could be developed for purposes authorized and permitted by R-II zoning in force at the time of purchase, and prior thereto.
The existence of R-II zoning of said tract was part consideration for plaintiffs’ decision to purchase it for development of most of the tract as a residential subdivision.
In March 1967, following announcements of plans for construction and expansion of apartments in the vicinity, certain property owners filed a petition for rezoning of an area including the plaintiffs’ four lots, so as to prevent construction of apartments or other multi-family units in such area. Upon learning through a local newspaper item of the action of the planning commission of the city on such petition, plaintiffs appeared before the city commission and opposed the rezoning. However, on July 12, 1967, the city allegedly enacted an ordinance, copy of which is attached, rezoning plaintiffs’ four lots from R-II to R-I (single family residential). The plaintiffs contend, for a number of [168]*168reasons, that this rezoning ordinance is illegal and void. Under the view which we take of the case, it is not necessary to recite those contentions here.
These four lots were zoned R-II originally in 1956 and later in 1964 pursuant to a comprehensive zoning ordinance of the city. Plaintiffs have a vested right in the continuation and permanency of the R-II zoning of their four lots. The rezoning action amounts to a taking, confiscation, and complete destruction of plaintiffs’ property, completely depriving them of the beneficial use thereof, in violation of stated provisions of the Federal and State Constitutions.
This count prayed that the ordinance be declared void as applied to plaintiffs’ four lots, and that the defendants be permanently enjoined from enforcing or applying it to plaintiffs’ property.
The defendants’ answer denied the material allegations of the petition and alleged that such ordinance was passed pursuant to and in compliance with all applicable requirements of the city and state. Attached to it are documents relating to enactment of the ordinance. Under our view- of the case, it is not necessary to set them out.
The defendants’ motion for judgment on the pleadings, pursuant to Georgia Laws 1966, pp- 609, 623 (Code Ann. § 81A-112 (c)), asserted that no cause of action was stated upon which relief could be granted; that as to the count involved here the defendants’ answer shows that the ordinance was passed in compliance with law; and that the petition should be dismissed because it seeks to enjoin the city from enforcing a valid ordinance under facts which do not authorize injunction, and also because it alleges mere apprehension of damage to a future speculative property use, not authorizing injunction.
The plaintiffs, in addition to their petition, relied upon two affidavits.
That of a real estate broker in the city recited, in material part, the following: that for stated reasons the four lots in question could not feasibly or practically be developed as single family residential properties of comparable quality to other houses in the area; that to restrict the use of this property to single family residences would amount to a complete restriction of its rea[169]*169sonable use; that it is remotely possible that-the lots might be capable of development as multi-family units; that single unit houses built there would have to be small and inexpensive; that they would be less attractive than others in the area; and that the fair market value of the lots would be approximately $12,000 to $15,000 as possible development under R-II zoning, but not more than $7,000 to $8,000 if R-I.
The essential features of the joint affidavit of the individual plaintiffs were those which follow.
Before purchase they determined that these lots could not be developed as part of the proposed residential subdivision. They determined to keep them zoned R-II for possible sale or development as multi-family residences, possibly duplexes, town houses or apartments, and therefore excluded them from the restrictive covenants covering the other lots. Realizing the problems of developing these lots but also realizing that they might possibly in the future be developed as multi-family residences, the plaintiffs purchased the tract with the thought of developing most of it as a single-family residence subdivision, and possibly developing these lots as multi-family residences. They would not have invested $75,000 in the development of this tract and would not have purchased it unless they had known that these lots could possibly be developed as authorized and permitted by R-II- zoning regulations and ordinances in existence at the time of purchase and for many years prior thereto.
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Per Curiam.
This appeal is from the grant of what is denominated a judgment on the pleadings, which dismissed a petition attacking the rezoning of property.
' The petition was filed in the Superior Court of Hall County by Norton Realty & Loan Company, Inc., and two of its officers and stockholders against the City of Gainesville and its commissioners. The petition is in two counts, but only Count 1 is involved here since the enumerations of error relate exclusively to it.
The allegations of that count, insofar as necessary to recite, are those which follow.
The corporate plaintiff is the owner of Lots 30, 31, 32, and 33 of a named subdivision within the city. On January 25, 1962, it purchased this and other property comprising an 18-acre tract fronting on U. S. Highway 129.
Prior to said purchase and continuing to the effective date of the rezoning ordinance in question this tract was zoned R-II, which permits development and construction of multi-family residences, including apartments. Also, prior to such purchase plaintiffs conferred with named city officials and from them received certain assurances and approvals, including that this tract was zoned R-II, and that it could be developed as a residential subdivision in accordance with plans and specifications proposed by the plaintiffs.
[167]*167Before purchasing the 18-acre tract plaintiffs determined that, because of the grade level of the four lots now in question, which front on U. S. Highway 129, they could not be developed as single family residential dwelling lots and must remain zoned R-II for possible future sale and development as duplexes, town houses or apartments. Thus, plaintiffs purchased said tract for development partly as a restricted residential subdivision and partly as possible multi-family units as permitted under R-II zoning. This dual plan of development was approved by and considered good land use and planning practices by the planning commission of the city.
Plaintiffs have expended over $75,000 in cash and development time and efforts. They surveyed and contracted for a street through the tract, prepared a restrictive covenant agreement for the subdivision which expressly excluded the four lots involved here, thereby leaving them to be developed as permitted under R-II zoning, and upon completion of paving and water system and approval of the city, began in March 1964 the sale of residential lots in the subdivision. In considering the possible use and development of the four lots prior to such purchase, plaintiffs would not have purchased the 18-acre tract and would not have made said expenditures unless they had known that the four lots could be developed for purposes authorized and permitted by R-II zoning in force at the time of purchase, and prior thereto.
The existence of R-II zoning of said tract was part consideration for plaintiffs’ decision to purchase it for development of most of the tract as a residential subdivision.
In March 1967, following announcements of plans for construction and expansion of apartments in the vicinity, certain property owners filed a petition for rezoning of an area including the plaintiffs’ four lots, so as to prevent construction of apartments or other multi-family units in such area. Upon learning through a local newspaper item of the action of the planning commission of the city on such petition, plaintiffs appeared before the city commission and opposed the rezoning. However, on July 12, 1967, the city allegedly enacted an ordinance, copy of which is attached, rezoning plaintiffs’ four lots from R-II to R-I (single family residential). The plaintiffs contend, for a number of [168]*168reasons, that this rezoning ordinance is illegal and void. Under the view which we take of the case, it is not necessary to recite those contentions here.
These four lots were zoned R-II originally in 1956 and later in 1964 pursuant to a comprehensive zoning ordinance of the city. Plaintiffs have a vested right in the continuation and permanency of the R-II zoning of their four lots. The rezoning action amounts to a taking, confiscation, and complete destruction of plaintiffs’ property, completely depriving them of the beneficial use thereof, in violation of stated provisions of the Federal and State Constitutions.
This count prayed that the ordinance be declared void as applied to plaintiffs’ four lots, and that the defendants be permanently enjoined from enforcing or applying it to plaintiffs’ property.
The defendants’ answer denied the material allegations of the petition and alleged that such ordinance was passed pursuant to and in compliance with all applicable requirements of the city and state. Attached to it are documents relating to enactment of the ordinance. Under our view- of the case, it is not necessary to set them out.
The defendants’ motion for judgment on the pleadings, pursuant to Georgia Laws 1966, pp- 609, 623 (Code Ann. § 81A-112 (c)), asserted that no cause of action was stated upon which relief could be granted; that as to the count involved here the defendants’ answer shows that the ordinance was passed in compliance with law; and that the petition should be dismissed because it seeks to enjoin the city from enforcing a valid ordinance under facts which do not authorize injunction, and also because it alleges mere apprehension of damage to a future speculative property use, not authorizing injunction.
The plaintiffs, in addition to their petition, relied upon two affidavits.
That of a real estate broker in the city recited, in material part, the following: that for stated reasons the four lots in question could not feasibly or practically be developed as single family residential properties of comparable quality to other houses in the area; that to restrict the use of this property to single family residences would amount to a complete restriction of its rea[169]*169sonable use; that it is remotely possible that-the lots might be capable of development as multi-family units; that single unit houses built there would have to be small and inexpensive; that they would be less attractive than others in the area; and that the fair market value of the lots would be approximately $12,000 to $15,000 as possible development under R-II zoning, but not more than $7,000 to $8,000 if R-I.
The essential features of the joint affidavit of the individual plaintiffs were those which follow.
Before purchase they determined that these lots could not be developed as part of the proposed residential subdivision. They determined to keep them zoned R-II for possible sale or development as multi-family residences, possibly duplexes, town houses or apartments, and therefore excluded them from the restrictive covenants covering the other lots. Realizing the problems of developing these lots but also realizing that they might possibly in the future be developed as multi-family residences, the plaintiffs purchased the tract with the thought of developing most of it as a single-family residence subdivision, and possibly developing these lots as multi-family residences. They would not have invested $75,000 in the development of this tract and would not have purchased it unless they had known that these lots could possibly be developed as authorized and permitted by R-II- zoning regulations and ordinances in existence at the time of purchase and for many years prior thereto. They consider the lots worthless and economically unfeasible for development as single-family residential properties under R-I zoning.
Upon the case being docketed here the appellees filed a motion to dismiss the appeal.
We first deal with the motion to dismiss.
One ground is that appellants’ brief was not filed within ten days after the docketing of the case, as required by Rule 20 of this court. 221 Ga. 884. While, failure to timely file briefs may be ground for contempt, it is not ground, for dismissal of the appeal. Barrett v. State Hwy. Dept., 211 Ga. 876 (89 SE2d 652). This ground is not meritorious.
The second ground asserts that the enumeration of errors was not filed “at the time” the brief was filed in' this court, as [170]*170■required by Georgia Laws 1965, pp. 240, 243 (Code Ann. § 6-810). The enumeration of errors was filed within the time required for filing briefs. That the brief was not marked “filed” within that time due to nonpayment of costs does not invalidate the filing of the enumeration of errors. What is of decisive importance here is that the enumeration was filed in time. Simultaneous filing of the two documents is not required.
The third ground recites that the appellants failed to file with the clerk of the trial court a copy of the enumeration of errors as required by Georgia Laws 1965, pp. 240, 243 (Code Ann. § 6-810)'.' While this court has not passed upon the question, the Court of Appeals has on several occasions, and has held that such failure does not result in dismissal. See Adams v. Morgan, 114 Ga. App. 180 (150 SE2d 556); Calloway v. State, 115 Ga. App. 158 (154 SE2d 291); Starke v. Lanier, 115 Ga. App. 229 (154 SE2d 289). We agree with those rulings.
The final ground complains that the brief ‘of appellants does not conform to the requirements of Rule 16 of this court in that it fails to provide any reasons for this court’s jurisdiction and also that it does not contain statements of the issues of law as made by the errors enumerated or contain references to the record showing the errors and issues. 220 Ga. 909, 912. While the brief does not fully comply with the requirements of Rule 16 in the respects complained of, such does not warrant dismissal of the appeal. The situation here is vastly different from that in Hicks v. Maple Valley Corp., 223 Ga. 577 (156 SE2d 904), relied upon by appellees in support of this ground of their motion to dismiss.
Since matters outside the pleadings were presented to and considered by the trial court, the motion for judgment on- the pleadings must be treated as one for summary judgment and disposed of as provided in Georgia Laws 1966, pp. 609, 660 (Code Ann. § 81A-156). See Ga. L. 1966, pp. 609, 623 (Code Ann. §' 81A-112 (c)). Therefore, we must determine whether “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue -as -to any material fact and that the moving party is entitled to judgment as a matter of law. . .” Ga. L. 1966, pp. 609, 660 (Code Ann. § 81A-156 (c)).
[171]*171We do find an issue of material fact as to whether the plaintiffs, as they contend, had a vested right to the continuation of R-II zoning of this property.
Although the various jurisdictions appear to be in sharp conflict on the issue, this court, in Clairmont Development Co. v. Morgan, 222 Ga. 255 (149 SE2d 489), has recognized that a property owner may under some circumstances acquire a vested right to the continuation of zoning regulations applicable to the land when he purchased it. See also, 58 AmJur 1034, Zoning, §§ 173, 174; Anno. 138 ALR 501-503.
In the Clairmont case, 222 Ga. 255, supra, the plaintiff company entered into a contract to buy certain property if it should be rezoned for commercial use. The company requested the rezoning and the property was rezoned. A short time later, but after the company had spent a considerable sum of money on the property to develop it for a shopping center, the zoning authorities reconsidered and gave the company notice that it had decided to change the zoning back to what it had been originally, which excluded commercial use. The company’s petition to enjoin such rezoning from commercial back to residential alleged that the company, in reliance upon the board’s rezoning, had spent much time, effort and money on the property to develop it for a shopping center. This court reversed the trial court’s sustaining of general demurrers to the petition. The opinion stated (p. 258): “[The allegations] unquestionably show that the plaintiff has from its reliance upon such rezoning ordinance and the expenditures it has made in consequence thereof, acquired a vested property right and the . . . [United States and Georgia Constitutions] protect vested property rights. . . When this property right became vested this plaintiff indisputably had a right under the rezoning ordinance ... to use the subject property for a shopping center and the zoning authority, of Gwinnett County can not legally divest this right by the subsequent adoption of another ordinance prohibiting such use.”
In the instant case the plaintiffs in their petition and affidavit state that they purchased this property in reliance upon its being zoned R-II, that they have invested and spent in excess of $75,000 plus considerable “time, efforts, worry and activities” in [172]*172the development of this property, and that they would not have invested this amount and would not have purchased the property unless they had known that the lots now in question could possibly be developed as authorized and permitted by R-II zoning regulations in existence at the time of their purchase and for many years prior thereto. They further state that if they had known that the city might rezone the property to R-I, thereby depriving them of the right to offer such lots for sale or development as permitted under R-II zoning, they would not have purchased or improved the property.
Under the Clairmont case and this evidence, we cannot say as a matter of law that the plaintiffs had no vested right to the continuation of the R-II zoning. In our view, genuine issues of material fact were presented as to whether the plaintiffs have a vested right to the continuation of the R-II zoning which was in force when they purchased the property and expended their money, time and efforts in its development.
The cases relied upon by the defendants as negativing the concept of vested right to continuation of zoning regulations, Morgan v. Thomas, 207 Ga. 660 (63 SE2d 659); Neal v. City of Atlanta, 212 Ga. 687 (94 SE2d 867) (one Justice not participating) ; Seckinger v. City of Atlanta, 213 Ga. 566 (100 SE2d 192), are not applicable in the situation here. In each of them the claim of a vested right to the continuation of prior zoning related to property not owned by those making such contention.
Judgment reversed.
All the Justices concur, except Mobley and Grice, JJ., who dissent.