Fulton County v. Aronson

216 Ga. 497 (1960)

117 S.E.2d 166

FULTON COUNTY v. ARONSON.

21021.

Supreme Court of Georgia.

Argued September 15, 1960.

Decided November 10, 1960.

Rehearing Denied November 22, 1960.

Harold Sheats, Griffin Patrick, Jr., for plaintiff in error.

Morris B. Abram, John Hicks, Heyman, Abram & Young, contra.

HAWKINS, Justice.

This case involves a suit brought against Hal J. Aronson by Fulton County, to condemn 50 acres of residential land bordering the Chattachoochee River in an R-1 Section of the county, for use as the Marsh Creek Sewage Disposal Plant. The defendant filed a petition to enjoin the condemnation by the county, upon the ground that the county has acted in bad faith and has abused its discretion, in that it is seeking to condemn far more property than is necessary. A temporary restraining order was issued, and the county filed defensive pleadings to the injunction suit. The matter came on for hearing and an interlocutory injunction was granted. Later, the court also overruled the county's general demurrers to the petition for injunction. The exceptions are to these judgments. Held:

1. A defendant cannot decline to litigate in a suit in which he has already been brought into court, by bringing another action, but is bound to set up all defenses in the first suit. Jeffrey McElreath Mfg. Co. v. Hill, 212 Ga. 183 (91 S.E.2d 337, and cases there cited.

2. The plaintiff's petition showing on its face that there was pending at the time it was filed another suit brought by the county under Ga. L. 1957, p. 387 (Code Ann. Ch. 36-6A), seeking to condemn the plaintiff's land, in which suit he could have set up his contentions that the county had acted in bad faith and had abused its discretion, in that it was seeking to condemn far more property than was necessary, the trial judge erred in overruling the general demurrer to the plaintiff's petition, and in granting the interlocutory injunction excepted to. Marist Society of Ga. v. City of Atlanta, *498 212 Ga. 115 (90 S. E. 2d 564); O. K., Inc. v. State Highway Dept., 213 Ga. 666 (100 S. E. 2d 716); Russell v. Venable, 216 Ga. 137, 143 (4) (115 S. E. 2d 103).

Judgment reversed. All the Justices concur.