*1 rеsult continuous recurrent act or condition and is of Ethridge City App. indirect character.” v. Lavonia, 190,191 (112 SE2d distinguishable
This case is upon City Albany its facts from Jackson, 478) v. App. Langley City SE and v. Augusta, Council ASR city wherein the allowed water to continuously overflow flood and plaintiff’s premises, City Atlanta Minder, 420) Mayor and Bell v. Savannah, &c. of ( 165), which, city’s convenience, 298 77 SE garbage upon dumped plaintiff’s property over a period In cases, time. plaintiffs’ property thosе having been drainage systems converted garbage into dumps, rulings were the cities’ conduct amounted to the damaging of the subject property public use as contemplated by Art. Sec. I, Ill, Par. Constitution, State and to have nui- crеated sances. explanation This possible is made order that fusion may be avoided when the cases last disсussed and this in pari are read materia. negligent
Had the performance of a ministerial re- function sulted damage plaintiff’s property, he would have been entitled to recover. However, complete there is unаnimity holdings of our courts that “in an action based on negligence municipal alone a corporation is nоt liable damage caused negligent system maintenance its sewerage and drainage, being, governmental maintenance and not a ministerial City function.” Augusta Council Williams,
Judgment J., concur. affirmed. PARKS, et al. v. Administrator. 43316. DOCKERY Argued January 3,1968. 8, 1 968 *2 Little, appellants. F. Kinney, Pittman & Sam apрellee. John Wiggins, E. an an action to Judge. Chief This is
Felton, Ann. power a of sale pursuant firm the sale of land under to Cоde Tingle (Ga. 1935, p. Supreme Court, L. 37-608 § (87 841), Assn., v. Atlanta Federal Sav. &c. Ga. SE2d 636 held by SE2d this has Supreme Court, than Appeals, of rather the however, must jurisdiction appeals. yield, of such This decision the v. Trustees older (3) (184 Seminary, in which the just appeal, holding, Divi- Court took original suit equity Although sion that it was (1), sought injunction against power there the exercise of jurisdiction by equitable as a basis sale, that eliminated refusing an the trial court judgment of unappealed-from court facts—that trial injunction. Nor do the interlocutory made, to to its confirmation sale, if be ordered the authority trial cited, as statutory pro- confirmation, granting of the order court’s (Code 1933, of sales under decree the confirmation vision for that the 37-1206) necessarily demand the conclusion § — theory jurisdiction solely on assumed merely because of the trial сourt’s under decree became one made, The sale itself was requiring confirmation. order pursuant contаined but pursuant decree, in the deed. be as last stated
Even if the basis of the case, contrary hereinabovе, however, Huguley case the statute must control. statutory law, which 445); Wright Stevens v. Contr. Huguley, Ga. 692 SE2d 511); Supply App. 373, Stein Steel & Co., Cоde of Tate, Co. 1933, adopted legislature which has been by our as our official code, provides, 37-601, as “Powers,, follows: especially of § being appointment, always founded on trust or confidence, are peculiarly subjects of equitable supervision.” “powers” The term is not restricted, qualifying phrase being “especially .”, . . not “exсlusively” any other similar word. Code of 1933, 37- § provides: “In all cases where no discretion shall be allowed, or the discrеtion allowed shall abused, equity be may compel a faithful execution of power.” (Emphasis supplied.) Further- more, (Code L. 1935, p. Ann. 37-608), under which present proceeding statute the placed was brought, was code under annotаted the title, “Equity,” II, under “Part Grounds Objects For Equitable Relief,” Chapter and under thereof, “Execution Powers,” together spеcified other powers. categorization of statutes in the unofficial, annotated code not, of cоurse, binding on the courts, would be where done enactment of the General Assembly, *3 it nevertheless serves to corroborate our conclusion that proceeding ais matter equitable jurisdiction. We cannot comprehеnd a basis on which it can be said that the Act of 1935, give intended to law court of a case con- firming a sale of rеal property under a power of sale. Supreme Court. Jordan, J.,P.
Transferred and Quillian, JJ., Eberhardt concur. Pannell, Been and Whitman, JJ., dissent. dissenting. Judge, I dissent from the majority
Whitman, opinion in this regard the case of I v. Atlanta Federal &c. Assn., Sav.
to this court, SE2d 804), as controlling, and that this court rather than the jurisdic- Court has tion of including on the merits, the overruling of appellants’ рlea in abatement. Wilson Trustees Semi-
nary, regarded as contrary conflicting to or Tingle. the case The as Wilson brought originally equitable petition enjoin was to the exer- cise of sale security contained in a deed аnd on the interlocutory hearing injunction was refused and it was ordered if should be confirmation proposed salе, made, plaintiff an amendment
by the court. After sale the filed ground on of an objecting to confirmation of the sаle alleged agreement extending as to debt. readjusting opinion stated that case that “this equity case,” question involved to confirmation of the term only had to do with the of court at which confirmation passed ques- also had, order was' and the on the the interlocutory injunction by tion the refusal of the lower holding exceptions connection that the bill of as to interlocutory injunction allowing refusal of proceed subject to the confirmatiоn of the tendered court was question. too late raise case did not involve as between the question confirmation of sale. relation Appeals ap- appear powers to relate to and 37-606 Code §§ on or confidence powers founded trust pointment and similar deeds in Code of sale dealt with powers and not Ann. 37-607. Judges concur to state that Pannell and Deen am authorized dissent.
in this 43362. COMPANY ALLSTATE INSURANCE et al. McBRIDE, Guardian, *4 January Argued 3, 1968. 1 968