9 S.E.2d 266 | Ga. | 1940
1. It was not erroneous to refuse to grant an injunction at the instance of the State Highway Board, to prevent the sale of a parcel of land on which a State highway is located, the sale being advertised by the marshal of the City of Baxley under an execution issued under the Baxley street-improvement act approved July 30, 1927 (Ga. Laws, 1927, pp. 902-916), there being no offer on the part of the highway board to compensate the holders of bonds issued under such act, for damages sustained by them by injuries occasioned by incorporating such property into a State highway.
2. In hearings on interlocutory injunction, the rules of evidence are not in all respects as rigidly enforced as on final trials. In such cases the admission *293 of some secondary, hearsay, or opinion evidence will not necessarily require a reversal.
On June 2, 1931, B. Hall Wilson, through his guardian, under an order granted by the judge of the superior court authorizing the property to be sold at private sale for reinvestment, conveyed the same to Appling County. On May 9, 1932, Appling County conveyed by deed to the State Highway Board of Georgia the right of way through the property; which right of way is now occupied by said board as a State highway. The county paid for the property $8500, and moved a house located thereon. The highway through this lot left a narrow strip on two sides of it, which the county later sold, one for $900, the other for $850. The entire lot had a reasonable value of from five to ten thousand dollars. The bill of exceptions further recites that the sixty-foot wide strip of property, immediately after the execution and delivery of the deed from the county to the State Highway Board, became a part of State Highway No. 27, and was paved, and continuously thereafter has been a part of the State highway system of Georgia, "at which time said State Highway Board had knowledge of the paving assessment against said county." The fi. fa. above referred to recites that there remain due and unpaid instalments for the years 1931 to 1938, inclusive, amounting to $1031.32, including interest to September 1, 1939. The petition prayed for injunction, and general relief. The response of Appling County prayed that the City of Baxley and all others be enjoined from selling or proceeding *295
to collect said paving claim against any of the owners of said land. The City of Baxley and its marshal in their answer prayed that the injunction be refused. Intervenor Sanford prayed as follows: "That this intervention be allowed; and further prays: first, that the injunction prayed for be denied; second, that said County of Appling and said State Highway Board be adjudged to be liable for the payment of said paving assessment; third, that judgment be rendered against said County of Appling and said State Highway Board, for the use and benefit of petitioner and other like situated bondholders, for the amount of said paving assessment." The State Highway Board and Appling County excepted to the refusal of an injunction. Error is also assigned on the admission of the following evidence of R. M. Dunn: "The county agreed to pay the paving assessment; however the county had a lot of paving assessments which it had to pay on account of paving around the courthouse square, and was not in position at the time to take up this paving, and it was just allowed to stand. It has always been understood that the county was to pay and would when it could pay this paving." The objection to its admission was on the ground that no such agreement or understanding would be binding upon the county unless it was in writing and made with the proper county officials authorized to act for the county at the time the property was bought. The court overruled the objection and admitted the testimony as showing notice to the county of the outstanding paving assessment.
1. The State Highway Board contends that it is entitled to injunction under the principles underlying the decisions of this court in the following cases: Griffin v.Augusta Knoxville Railroad,
But in the instant case, although the State Highway Board seeks the aid of a court of equity, it does not in its petition offer to do equity. Code, § 37-104. It can not, as an instrument of government and as against the owner, take private property for public uses without adequate compensation being paid therefor. Neither can it in good conscience, as to one who holds a valid lien against property acquired by it for road purposes, deny redress for the injury done such lienholder, when, by incorporating such property into a State highway, it puts it beyond the reach of process based on such lien. Since it does not appear that the State Highway Board has made any effort to adjust the equity owing to the lienholder, to wit the holder of bonds issued under the Baxley street-improvement act, approved July 30, 1927 (Ga. Laws 1927, pp. 902-916), it is not entitled to injunction, and the judge was right in denying it. Under the principles above stated, however, notwithstanding the property may be sold by the marshal, it will not be too late for the State Highway Board under proper pleadings to prevent the dismemberment of that portion of the highway here involved; provided compensation is paid to the holders of the paving bonds, to cover such an amount as they may have been damaged by reason of the appropriation for highway purposes of a portion of the property on which they hold valid liens.
2. Whether that portion of the testimony of Dunn objected to was properly or improperly admitted can not affect the judgment in the present writ of error; and hence no ruling will be made thereon. In hearings on interlocutory injunctions, the rules of evidence are not in all respects as rigidly enforced as on final trials. It has been held that the admission of some secondary evidence, or the admission of some hearsay or opinion evidence, will not necessarily require a reversal. Southern Cotton-OilCo. v. Overby,
Judgment affirmed. All the Justices concur. *298