234 S.E.2d 404
53621.Court of Appeals of Georgia.ARGUED MARCH 3, 1977.
DECIDED MARCH 18, 1977. REHEARING DENIED MARCH 31, 1977.
Mrs. Gregory, the appellant here, originally brought an ejectment action against the appellees; she was successful. On appeal Mrs. Gregory’s writ of possession was affirmed. 231 Ga. 710
(203 S.E.2d 507). Thereupon the mayor and council sought an injunction temporarily restraining Mrs. Gregory from interfering with the sewer line in question until condemnation proceedings could be instituted. Mrs. Gregory answered the complaint for injunctive relief and counterclaimed for trespass, punitive damages and attorney fees. Prior to a hearing on this matter, condemnation proceedings were begun and an award granted. Thereafter the mayor and council moved to strike the counterclaim filed by Mrs. Gregory in her answer to the complaint for injunctive relief. The trial judge heard the motion to strike and granted same; Mrs. Gregory appeals.
ARGUED MARCH 3, 1977 — DECIDED MARCH 18, 1977 — REHEARING DENIED MARCH 31, 1977.
Action for damages. Clarke Superior Court. Before Judge Barrow.
Rupert A. Brown, Guy B. Scott, Jr., for appellant.
Denny C. Galis, for appellee.
DEEN, Presiding Judge.
In Mrs. Gregory’s ejectment action there was a prayer for mesne profits but this claim was eliminated from consideration by the jury by the court’s charge; there was no exception to this action of the court by Mrs. Gregory. Mesne profits accruing to Mrs. Gregory up to the time of the verdict in the ejectment action could have been recovered only in that proceeding Beetles v. Steadham, 187 Ga. 601 (1 S.E.2d 431). Those accruing thereafter, and while the case was on appeal could have been recovered only by following the procedure outlined in Brown v. Tyson, 150 Ga. 598 (104 S.E. 420); this procedure was not
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followed here. These remedies being exclusive and Mrs. Gregory’s counterclaim to the action for injunctive relief being in the nature of a separate action for recovery of mesne profits, the motion to strike was properly granted. Code § 33-105.
Judgment affirmed. Webb and Marshall, JJ., concur.
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