*1 judgment tion that motion be entered in -with the accordance a judgment the verdict. notwithstanding Judgment Bussell, reversed with direction. Eberhardt and JJ., concur.
40293. CITY OF GAINESVILLE MOSS. denied Rehearing Decided November December *2 Gunter, B. for Kenyon & William Gunter,
Kenyon, error. Carey, Brannon, M. Brannon
Stewart, & Jack Carey, Sartain Schuder, Brannon, Jr., & C. contra. E. Maner, Adams, L. amicus curiae.
Oliver & Clifford provides, inter Judge. Code 69-308 Ebbrhardt, § against municipality “with brought shall a alia, that no suit be happening the event six months of the of first, out within (emphasis added) present upon predicated” claim is specified city containing a certain in ing written notice to a seeks alleges continuing formation. Plaintiff nuisance and than recover for matters some of which occurred the date prior notice, of October 30, six months any section bars provisions Failure to comply (38 City right Saunders Ga. 619 of action. v. 113 (141 Moultrie, App. 631 SE City Newton v. 978); SE (125 Albany, SE2d Pettaway City Ga. 739 322); 105 continuing 568). a that, since city The defendant contends of action Scott v. Dud daily, to a new cause gives rise (105 damages accruing (2) 752), any ley, 214 Ga. SE2d prior giving of the notice cannot more than six months 69-308, of Code Ann. because conditions recovered § Barrett, Atlanta limitation, which is statute of 654), not been have met. App. 469, city, agree, purpose contended adoption legislature of the Act amend- intent (Ga. Sess., p. 338) was Code Ann. L. Nov.' ing opportunity fourfold; offending city to afford the of an officials rela- investigate complaint time when the evidence afford readily available, tive to be more is calculated thereto nui- complaint relates to opportunity, them if it thereof proper steps to abate before the effects take sance, right recov- great reaching, become or to bar far claimant’s ery arising by for all claims reason of matters any or rise transpired giving have existed to a of action more than required dates six ne- opportunity ante litem and to afford gotiate a it may settlement of such claims as determine to be litigation before commenced, protecting meritorious thus general exposure public reducing interests of the in the city treasury depletion funds from growing claims position This support finds Atlanta v. *3 Scott, 76) Ga. 257 where the court dealt with a special applicable Act the Atlanta requiring of an days. ante notice litem of 90
It the city appears is contention of the here that it since from plaintiff’s petition that the alleged nuisance had been exist- ence continuously year from the the beginning 1959, of if the petition against be construed him we conclude that must what- ever in the diminution value of his property attributable thereto already had more than prior occurred six date the months the ante of litem and is not copy recoverable. A of the notice is attached to the petition therein and included ref- erence. itWhile is true that in it has that he asserts registered complaints city with the past “for four officials the years,” and that the basis the for claimed diminution in the value of the use of property alleged his loss of income from says his business he brought on by pollution was the Flat adjoining Creek it—substantially all of which occurred more than prior notice—yet six months to the he asserts further that grown steadily “This situation has worse and has continued day day up to, including present the time, from for years the past two been has so bad that customers not could sup- (Emphasis
stay long prepared to eat food there.” enough claim his plied)'. brings part, least, We that this think giving the period preceding within six-month as can notice, petition this reason the amended and for general subject be held demurrer. that petition shows it be conceded
But if prior six than months damage occur more did claimed are with case of Vickers still faced giving notice, appears (5), supra, which think urges, and we adversely. settle the matter dealing in that case merit, Supreme that the Court with with the Act or legislative adopting intent on rise to action giving effect barring claims its than to the date or six months dates application settling a literal case and that as meaning the Act would rob of its adversely issue urged Vickers situation. further the Act referred to in explained if “the .event” only can four-year be the entire amending Code 69-308 was viewed § 3-1001, of limitation in Code covered statute de that if true Vickers in direct conflict with the older this be Dudley, 565, supra. cision Scott v. have the effect may Court intended as
Whatever “the event” in the ante have of its decision or viewed state statute, it requirement held, litem notice under a under that: consideration, of facts all fours with those here alleged given “The notice to have been within six expiration four-year period during which the nuisance damage petitioner’s continuously property caused given prescribed within the time the statute” within six *4 it, of the event. we is happening As view this interpretation (which the statute the by Court in v. Dudley), was not Scott bound it. by involved and are therefore, . Vickers, gen- On we conclude that the basis properly eral overruled. demurrer of that erred in overruling spe The insists the court its petition to the as amended. All cial demurrers concern the meas ure of dam measure of improper
One attacks as an demurrer period extended ages the “That paragraph alleging due been has plaintiff exist, that has been allowed to said nuisance conjunction in and deprived unimpaired use his property use in the value there has been diminution with this alleg and herein,” time covered his over the property result of in a as the “direct damages amount ing specified Augusta App. Boyd, v. 70 Ga. nuisance.” Council of page there, It said (29 437) point. SE2d answers for the diminu “the be entitled to recover plaintiffs that would combination property in the the use of tion value of taking consideration the discomforts residence store into by and the nuisance. annoyances owners suffered and which are to those here. . . .” The facts similar peti paragraph of demurrers attack Several other on the by the ante litem notice reference incorporating tion income from ground specified that the notice sets out losses good and that of rentals and loss of business, loss will, petition in reference binds incorporation the notice in other while he seeks damages, to that measure of plaintiff property. allegations recover diminution value of that all that is necessary settled is well compliance requirements with the of Code a substantial is injury “time, place, and extent of relating caused same. . .” It is negligence . . . and amount plaintiff any that state necessary even (99 Maryon Atlanta, 116), SE damages in his the amount of claimed plaintiff is bound Taylor King, 104 Ga.. See notice. reason he not bound
265) citations. For same Rather, it. damages be asserted in the measure of set petition, clearly for the has matter quoted in the paragraph above measure of out his merit. (a). without The were demurrers incomplete therefore remaining demurrer not be considered. need Nichols, J., Bell, J., P. P.
Judgment Flail, Frankum, affirmed. JJ., J., Felton-, concur. C. and Jordan, J., and Parnell, Russell dissent fart. *5 part. my opinion in In dissenting Judge, Vick-
Felton, Chief contrary supra, ers continuing- If in a 565, supra. in Dudley, Scott ruling a every day, arises a action nuisance situation new “the event” can not considered years whole four injured We his claim for upon party based which Court, as that by are bound decision oldest interpretation not of Code court is. Vickers an damages The preclude following Scott. us and does than six to the ante which accrued sued for I do believe that law are not notice recoverable. litem give municipality oppor- a a fail permit party would (and abate pay accrued tunity four-year the nuisance secret damages), keeping until by provided litem pre- almost The statute had ad run. vent situation. joins in dissent.
Judge me this Jordan et al. v. 40377. BOYKIN PARKER. against a suit Judge. principal surety This and
Hall, on an The plaintiff attachment bond. was a nonresident project in County. subcontractor on Chatham construction The with an at- defendants executed bond connection tachment out principal'against plaintiff. sued The equipment being attachment was on trucks other levied plaintiff County. principal used Chatham The defendant recover in the action on failed to attach- issued, ment recover, accord- sues to bond, expenses ance terms costs and allegedly consequence $34,000, of over sustained property. the attachment in a of his The trial resulted judgment $6,035, plaintiff. verdict and for the The de- assign judgment fendants error the trial court over- their ruling amended motion for new trial. Held: defendants complain trial court refused charge, requested them, “attorney’s the effect that expenses upon fees other attendance trial [sic]