58 S.E.2d 184
17002.Supreme Court of Georgia.
MARCH 14, 1950.
The trial court, by its rulings on the demurrer, having stricken both the original petition and the amendment thereto, erred in directing that the case “stand and proceed as a suit for land,” and the trial thereafter was nugatory.
No. 17002. MARCH 14, 1950.
Complaint for land. Before Judge Rowland. Laurens Superior Court. December 15, 1949.
The original petition in this case alleged that the plaintiff was the owner and in possession of a described lot of land lying south of another described lot of land belonging to the defendant, and that the defendant was trespassing on the plaintiff’s lot by erecting a fence and wall six feet from the line of and on the plaintiff’s property, and prayed: (1) that the defendant be restrained and enjoined from trespassing upon the lands described in the petition; (2) that the defendant be restrained and enjoined from interfering with the plaintiff in the exercise of his use and enjoyment of the six feet of land, and from going upon the said parcel of land, and from in any other manner interfering with the plaintiff’s right to same; (3) that a day certain be fixed upon
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which the defendant is required to show cause why he should not be further restrained and enjoined from committing any of the alleged acts of trespass; (4) that on the final hearing the defendant be permanently enjoined from committing any of the alleged acts of trespass; (5) for general relief; and (6) for process.
The bill of exceptions recites that, before the trial on the merits, the defendant urged an oral general demurrer to the petition upon the ground that no cause of action was set out, whereupon the plaintiff tendered an amendment to his petition, in which he alleged: that the plaintiff and the defendant were the respective owners of the lots of land described in paragraphs 2 and 4 respectively of the original petition; that the defendant had taken possession of and was exercising dominion over a strip of land six feet wide, on the north side of the plaintiff’s said lot of land, across the entire north side of said lot, which said six feet belongs to the plaintiff; that the defendant has no title, right, or interest to or in the said six feet of land; and prayed: (1) that the plaintiff have a judgment in his favor; (2) that a decree be had against the defendant, decreeing and declaring that the said six feet of land belongs to the plaintiff, and that the defendant is the owner of only the land described in his deed; (3) that the defendant be permanently restrained from exercising any further control or dominion over said six feet of land; and (4) that the amendment be allowed as a part of the original petition. This amendment was allowed and made a part of the original petition, subject to demurrer.
To the petition as thus amended the defendant demurred, upon the grounds, among others: (1) because the petition fails to set forth a cause of action, and there is not enough in the petition to amend by; (2) because the petition seeks to restrain an act that has already been completed; (5) because the amendment sets up a new and different cause of action; (6) because it appears from the petition that the plaintiff is seeking a mandatory injunction; (8) because eviction of the defendant and admission of the plaintiff into possession of the premises in dispute is not within the scope of injunction; (10) because the plaintiff has an adequate remedy at law; (12) because injunction is not an available remedy for evicting a party from actual possession
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of land, the right and title to which is in dispute; (14) because the petition fails to show any change in the dividing line between the properties of the plaintiff and the defendant, since the plaintiff acquired title to the property claimed by him; (15) because the plaintiff fails to attach an abstract of title to the property in dispute; and (16) because the plaintiff seeks through his amendment to change his cause of action, from a suit in equity to restrain a trespass, into a statutory action for the recovery of land.
Upon the hearing of the demurrer the trial court entered the following order: “After hearing argument on defendant’s demurrer to the petition as amended, it is ordered that said demurrer be and the same is sustained on all questions of equity and injunctive relief raised and presented thereby. But said action is allowed to stand and proceed as a suit for land. Accordingly, grounds 1, 4, 14, 15, and 16 of the demurrer are overruled; while all other grounds of same are sustained.”
After this judgment on the demurrer, which was duly excepted to pendente lite and in the main bill of exceptions, the case proceeded to trial and resulted in a verdict and judgment for the plaintiff. The defendant presented his motion for a new trial, which was overruled. To these judgments the defendant excepts.
M. H. Blackshear, for plaintiff in error.
R. I. Stephens, contra.
HAWKINS, Justice. (After stating the foregoing facts.)
By reference to the judgment of the trial court on the demurrer, it will be seen that the court sustained the demurrer to the petition “on all questions of equity and injunctive relief raised and presented thereby,” and thus eliminated the original petition, which sought only injunctive relief. By that part of the order on the demurrer, that “all other grounds of same are sustained,” ground 5 of the demurrer, which attacked the amendment to the petition upon the ground that it “set up a new and different cause of action,” was sustained, and the amendment which sought a recovery of the land was eliminated, so that there was left no part of the petition, either as originally drawn or as amended, which could “stand and proceed as a suit for land”; and the trial court erred in so directing. Moreover, in view of the judgment sustaining ground 5 of the demurrer, the court erred in overruling
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paragraph 16 of the demurrer, which was that “plaintiff seeks through his amendment to change his cause of action from a suit in equity to restrain a trespass into a statutory action for the recovery of land.” Code, § 81-1303; Jenkins v. Lane, 154 Ga. 454 (1-d) (115 S.E. 126); Steadham v. Cobb, 186 Ga. 30, 37 (196 S.E. 730). Both the original petition and the amendment thereto having been thus stricken by the rulings on demurrer, the further proceedings in the case were nugatory.
Judgment reversed. All the Justices concur.