Robinson v. City of Macon

144 S.E. 767, 167 Ga. 83, 1928 Ga. LEXIS 102

• Court: Supreme Court of Georgia
• Decided: September 18, 1928
• Docket: Nos. 6239, 6240
• Status: Published

Opinions

Atkinson, J.

1. If the mayor and council of the City of Macon under charter authority enact an ordinance prohibiting digging or similar interference with its streets and sidewalks without first having obtained a permit from the city, and the city refuse an application of a lot-owner for a permit to lower the curbing and regrade the sidewalks of two streets on which the lot abuts, so as to make driveways of stated widths from the lot. to the traveled portion of each street, and the lot-owner proceeds on his own account, without a permit from the city, to lower the curbing and regrade the sidewalks for the purpose of constructing the driveways from his lot to the traveled portions of the streets,, equity will not enjoin the city and its officials from repeatedly arresting and prosecuting the lot-owner and his employees for violations of the ordinance prohibiting interference with the streets, where no attack is made on the validity of the ordinance.

2. Under application of the foregoing ruling, the judgment overruling the general demurrer to the petition, upon which error is assigned in the cross-bill of exceptions, was erroneous.

3. The error in overruling the general demurrer to the petition rendered nugatory all further proceedings in the trial court.

4. The judgment of reversal on the cross-bill of exceptions being controlling of the entire ease, the main bill of exceptions, which assigned error on the judgments overruling the demurrer to the answer and refusing a temporary injunction, will be dismissed.

Judgment reversed on the cross-bill of exceptions. Main hill of exceptions dismissed.

All the Justices concur, except Russell, G. J., who dissents. Brock, Sparks & Russell, for plaintiff. Harry S. Sirozier and Smith & Smith, for defendants.