Carpenter v. State Ex Rel. Hains , 194 Ga. 395 ( 1942 )

1. Where, on presentation of a petition to abate a public nuisance by injunction, an ex parte order is issued, restraining the defendant, until further order of the court, from doing the acts alleged in the petition to constitute a nuisance, and ordering the defendant to show cause on a given date why an interlocutory injunction should not issue, and on the date fixed by the order, after a hearing, interlocutory injunction issues, and the court thereafter denies a motion by the defendant to vacate the restraining order, the Supreme Court will not rule upon the merits of an exception to the judgment denying the motion to vacate the restraining order, it appearing that the question involved has become moot.

2. A petition by the solicitor-general to abate described premises as a public nuisance, alleging that the premises are being maintained and used for the purpose of prostitution and assignation, in violation of the Code, § 72-301 et seq., and attaching as a part of the petition affidavits by three persons who testify that the premises have been used as alleged, states a cause of action. A judgment overruling a general demurrer to the petition is not erroneous.

3. Where the bill of exceptions properly assigns error upon antecedent rulings, and assigns error upon the final judgment which by agreement was rendered by the judge without a jury, on the ground that the same is contrary to law, the Supreme Court will rule upon the assignments of error on the antecedent rulings and on the final judgment in so far as it is affected by such antecedent rulings. But the Supreme Court will not, on such assignment of error, review the final judgment upon any other ground, and will not consider other specific grounds of attack discussed in the brief of the plaintiff in error.

No. 14218. JULY 15, 1942. REHEARING DENIED JULY 27, 1942. The petition of George Hains, solicitor-general of the Augusta circuit, against Grady L. Carpenter, filed in the superior court of Richmond County, alleges that the defendant, a resident of the county, "has knowingly established and maintained and used building No. . . . . . ., known as the Big Oak Tourist Camp, in the 1269th district D. G. M., north side of Wheeler Road at Boy Scout Road in Richmond County, Georgia, said place and contents being used for the purpose of lewdness, assignation and prostitution, and is a public nuisance of which petitioner has been duly informed," as appears from affidavits of three persons attached as exhibits and as a part of the petition, these affidavits showing that the premises had been used for the purposes charged in the petition, in that men and women not husband and wife had rented and occupied rooms therein and had committed sexual intercourse during such occupancy. The petition based upon the facts disclosed by the affidavits alleges that the defendant has violated sections 72-301 and 72-302 of the Code; and that such conduct and use of the described premises cause irreparable damage to the people, good order, dignity, and public health of the county. The prayer is to abate the nuisance as provided by law. On presentation of the petition to the judge it was ordered filed, and the defendant was ordered to show cause on a date more than three days thereafter why the prayers of the petition should not be granted; and in the meantime and until the further order of the court the defendant was restrained from using the premises, including the furniture and contents. On the succeeding day the judge issued a supplemental order reaffirming the previous interlocutory order, and adding thereto an order restraining the defendant from keeping open the premises or using the personalty therein until further order of the court. The defendant filed a general demurrer to the petition; also a motion to vacate the restraining order, on the ground that the court exceeded its authority in restraining him from maintaining the business set out in the order, and from using the building and real estate and the furniture located in the building. He answered, denying the material allegations of the petition. On March 20, 1942, reciting that the defendant admitted, at the hearing held pursuant to the rule previously issued, that a prima facie case existed against him, the court ordered that the restraining order be continued in force until further order of the court; and enjoined the defendant from continuing the nuisance complained of in the petition, from using the premises described for purposes of lewdness and prostitution, from keeping open said premises, and from using the personalty located on the premises. The defendant amended his answer by alleging that all of the personal property located upon the premises was his and free from lien or encumbrance. On April 10, 1942, judgment was entered overruling and denying the motion to vacate the interlocutory restraining order, and on the same date judgment was entered overruling the general demurrer. To each of these judgments the defendant filed exceptions pendente lite on April 23, 1942.

On April 10, 1942, the parties agreed that all questions of law and fact arising in the case would be referred to the judge for final decision, and a jury was expressly waived. The plaintiff introduced a number of witnesses who testified that the allegations of the petition were true, and described the entire premises, showing that they were being used for the illegal purposes charged in the petition. The defendant offered no evidence. On April 15, 1942, the court entered a final decree in which it is recited that by agreement of the parties the case was submitted to the judge without the intervention of a jury, and after hearing evidence and argument of counsel the case was taken under advisement, and after due consideration it is adjudged by the court, that the restraining order against defendant be continued and made permanent; that the defendant is guilty of carrying on a public nuisance as defined by the Code, § 72-301 et seq.; that all of the personal property on the premises is condemned, suppressed, and abated; that the premises are ordered closed and the personalty removed therefrom; and that the house shall not be opened until further order of the court. It was further ordered, that all of the personal property located upon the premises, including furniture, fixtures, liquor, and property of every kind therein found, be sold by the sheriff, and that report of the sale be made to the court for disposition of the proceeds; and judgment for $300 was rendered against the defendant in favor of the State, with special lien on the premises to be enforced as required by the Code, § 72-312. On April 28, 1942, the defendant had a bill of exceptions certified, in which error is assigned on the judgment of April 10, 1942, overruling his motion to vacate the restraining order, and on the judgment of April 10 overruling his demurrer. The final judgment and decree rendered on April 15, 1942, is excepted to in the following manner: After setting forth in full the judgment, the bill of exceptions states that to "the said judgment and final decree plaintiff in error then excepted, now excepts, and assigns the same as error upon the ground that the same was contrary to law." 1. The first assignment of error is to the judgment denying the motion to vacate the ex parte restraining order. The judgment here excepted to was rendered on April 10, after the restraining order had been superseded by an interlocutory injunction on March 20. It thus appears that the question involved by the exception has become moot, and that no judgment by this court could affect the status of the parties as relates to that order. Accordingly no ruling is made upon the merits of this ground of exception.

2. The petition alleges in substance facts which the statute (Code, § 72-301 et seq.) declares to be a public nuisance abatable in the manner here employed. A cause of action is alleged, and the judgment overruling the general demurrer is not error as contended. Edison v. Ramsey, 146 Ga. 767 (92 S.E. 513); Henson v. Porter, 149 Ga. 83 (99 S.E. 118);Griffith v. Hapeville, 182 Ga. 333 (185 S.E. 522); Stateex. rel. Boykin v. Ball Investment Co., 191 Ga. 382 (12 S.E.2d 574).

3. It is observed that the bill of exceptions contains only a general exception to the final judgment, upon the ground that it is contrary to law. Where the only judgment excepted to is the final judgment rendered by the court without a jury, the rule is that a statement in the bill of exceptions that the plaintiff excepts to said judgment as contrary to law is not a valid assignment of error, will not be considered by this court, and the writ of error will be dismissed. Rodgers v. Black,99 Ga. 142 (25 S.E. 20); Wheeler v. Worley, 110 Ga. 513 (35 S.E. 639); Greenfield v. Harvey, 191 Ga. 92 (11 S.E.2d 776). Another clearly defined rule is that "The losing party to a judgment on general demurrer is given the option to sue out a direct bill of exceptions assigning error on the judgment, or to have certified and filed exceptions pendente lite. If the latter course be followed, the ruling on demurrer becomes a pendente lite ruling which is reviewable only after the termination of the case, on exceptions taken to the final judgment rendered therein." Durrence v. Waters, 140 Ga. 762 (79 S.E. 841). Supporting this rule, see Harrell v. Tift, 70 Ga. 730;Kibben v. Coastwise Dredging Co., 120 Ga. 899 (48 S.E. 330); Newberry v. Tenant, 121 Ga. 561 (49 S.E. 621);Durrence v. Waters, 143 Ga. 223 (84 S.E. 471); Gilbert v. Tippens, 183 Ga. 497 (188 S.E. 699). There are many other decisions of this court applying one or the other of the above discussed rules. Much uncertainty has arisen by a combination of the two rules. In Lyndon v. Georgia Railway Electric Co.,129 Ga. 353 (58 S.E. 1047), an attempt at clarification was made, and many decisions were reviewed. Special consideration was given to the decision in Newberry v. Tenant, supra, and it was there stated that the decision last mentioned was made by putting the two rules together and from them drawing a conclusion, and this court said that it was not satisfied with a part of that decision, and that it and cases following it were modified; and the court then undertook to state the correct rule as follows: "If the judgment is erroneous, not in itself, but because of antecedent error which entered into or infected it, then there can be no separate and distinct assignment of error on the judgment for other reason than because it was so infected or controlled thereby. If the final judgment is excepted to, and exception is made to and error duly assigned upon the ruling complained of specifications of error in the ruling need not be repeated in the exceptions to the final judgment, if they alone are relied on as making the judgment erroneous." The rule thus stated is lacking in certainty, in that it might imply that the exception to the final judgment must be based solely on the alleged errors in the antecedent ruling, whereas the true rule is, that, although the final judgment is excepted to on the general ground that it is contrary to law, if an examination of the record discloses that antecedent rulings duly excepted to in the bill of exceptions entered into and affected the final judgment, the bill of exceptions is sufficient to present to this court for decision the antecedent rulings excepted to and the final judgment in so far as it is affected by such antecedent rulings. In Petty v. Bryant, 188 Ga. 102 (2) (2 S.E.2d 910), after referring to the statutory requirements (Code, §§ 6-901, 6-1607) as to specification of decision and alleged error, it was said: "Thus where, as here, exception is taken to a specific antecedent ruling as stated, the plaintiff in error can not be heard, under a vague and uncertain general exception to the judgment as `contrary to law,' to complain of other alleged errors which might possibly have been assigned, and which in this case are in fact urged in the brief of counsel, but which are not in any wise specified in the bill of exceptions. Accordingly this court is without jurisdiction to consider the questions, raised for the first time in the brief of the plaintiff in error, as to the validity of the bond sued on, or whether the judgment for the plaintiff was without evidence to support it." In the present case the only ground on which this court will review the final judgment is that embodied in the antecedent ruling on the demurrer, and under the ruling in division 2 the final judgment is not erroneous upon that ground. Briefs of counsel urge that the final judgment is invalid, because it is contrary to the statute, and that the court was unauthorized by the statute to render that judgment. Under the decision last cited this argument can not be considered, in view of the failure of the plaintiff in error to specify such alleged error in the exception to the final judgment.

Judgment affirmed. All the Justices concur.