Jackson v. Abercrombie, 194 S.E.2d 473

Jackson v. Abercrombie

194 S.E.2d 473

Ga.

1972

Check Treatment

JACKSON v. ABERCROMBIE et al.

27473

Supreme Court of Georgia

NOVEMBER 30, 1972

229 Ga. 775

NICHOLS, Justice.

was established by a jury. The claims of the remaining claimants were established by the agreement approved by the superior court, after hearing, where any contention that such claims were exorbitant could have been raised by the appellants. Thus, unless there was some antecedent error, the final judgment directing the payment of the proceeds of the policy pro rata shows no reversible error.

3. The original action sought to enjoin the insurer and the administrator from paying out the proceeds of the policy alleging that the estate was insolvent and that the claims occurring out of the common disaster were in excess of the policy limits. The appellants were made party defendants at the request of the insurer to bring all parties before the court so that distribution could be made to all claimants from the funds. It was alleged, and not disputed (all pleadings being verified and no other evidence being shown), that the appellants were seeking in another court to collect the entire fund from the insurer. Accordingly, the judgment of the trial court making the appellants parties was not error. As to effect of sworn pleading in an equity case, see

Salter v. Ashburn, 218 Ga. 62 (2) (126 SE2d 404).

4. The remaining enumerations of error are controlled adversely to the appellants by the above rulings, and the judgment of the trial court ordering distribution of the fund pro rata between all claimants was not error for any reason assigned.

Judgment affirmed. All the Justices concur.

NICHOLS, Justice. This appeal arises out of a complaint seeking a writ of mandamus to require the Board of Commissioners of Clayton County to issue a conditional use permit. The trial court found that the proposed use was a conditional use in the zone where the applicant‘s property was located and that the evidence presented showed a compliance with all the requirements set forth in the zoning ordinance. The trial court further found that evidence had been presented to the county commissioners which would permit them in their discretion to refuse the permit. The trial court denied the mandamus absolute and the present appeal is from such judgment. The sole enumeration of error complains of the entry of such judgment. Held:

Under the decision in

Gifford-Hill & Co. v. Harrison, 229 Ga. 260 (191 SE2d 85), and the authorities there cited, the trial court erred in refusing to grant the mandamus absolute.

While the enabling legislation in the

Gifford-Hill case was a local Act relating to DeKalb County and the enabling legislation upon which the ordinance in the Clayton County case was based was a general Act (Ga. L. 1957, p. 420; Code Ann. Ch. 69-12), the language in both Acts requires enforcement by the withholding of building permits, etc. and does not permit a use permit to be withheld based upon the discretion of the authorities.

Unlike the zoning ordinance dealt with in

Hyman v. Pruitt, 226 Ga. 625 (176 SE2d 707), where no standards were set forth for conditional uses in the ordinance, here the ordinance set forth the standards to be complied with and the applicant admittedly met such standards. In setting explicit standards to be met in the ordinance, the authorities exercised their discretion. Compare .

Judgment reversed. All the Justices concur, except Jordan, J., who concurs specially, and Undercofler, J., who dissents.

ARGUED OCTOBER 10, 1972—DECIDED NOVEMBER 30, 1972.

Albert B. Wallace, for appellant.

John R. McCannon, Glaze & Glaze, George E. Glaze, for appellees.

JORDAN, Justice, concurring specially. I concur in the judgment based solely on the holding in

Gifford-Hill Co. v. Harrison, cited in the opinion, to which I dissented.

UNDERCOFLER, Justice, dissenting. In my opinion the instant case is controlled by

Hyman v. Pruitt, 226 Ga. 625 (176 SE2d 707). I would affirm the judgment of the trial court.

Gifford-Hill & Co. v. Harrison, 229 Ga. 260 (191 SE2d 85) is not applicable in this case. There the granting of the conditional use permit was not discretionary.

The fact that the conditions may be enforced by the withholding of building permits and occupancy permits applies only after the conditional use has been granted. In the instant case, under the discretionary powers of the commission, the conditional use was denied.