Barber & Barber, Inc. v. Board of Commissioners of Newton County

231 Ga. 574 (1974)

203 S.E.2d 192

BARBER & BARBER, INC. v. BOARD OF COMMISSIONERS OF NEWTON COUNTY et al.

28391.

Supreme Court of Georgia.

Argued November 14, 1973.

Decided January 9, 1974.

Vaughn & Barksdale, Sidney L. Nation, for appellant.

Ballard & Thigpen, W. D. Ballard, George W. Griffeth, Troy R. Thigpen, Jr., W. R. Campbell, Campbell & Campbell, for appellees.

NICHOLS, Justice.

Barber & Barber, Inc. filed a complaint in which it sought to mandamus the Board of Commissioners of Newton County to grant permits or authorization for the use of certain described lands for a mobile home subdivision.

A motion by owners of adjacent and nearby real property to intervene was filed and permitted.

One ground of defense to the plaintiff's complaint was that there had been no proper service on Newton County. A motion to strike this defense was overruled, and such ruling made the basis of one enumeration of error.

A motion for summary judgment was filed by the plaintiffs and overruled. Such question was certified for immediate review. Held:

1. The appellee, Newton County, in its brief filed in this court has expressly withdrawn its objection to the alleged improper service of the complaint upon it. Accordingly, by consent, the judgment on the motion to strike is reversed.

2. Enumerated as error is the allowance of the intervention by the alleged "class" represented by the one named intervenor. The motion to intervene was filed pursuant to § 24 of the Civil Practice Act as amended (Ga. L. 1968, pp. 1104, 1108; Code Ann. § 81A-124 (b)), which provides: "Upon timely application anyone may be permitted to intervene in an action: (1) when a statute confers a conditional right to intervene; or (2) when an applicant's claim or defense and the main action have a question of law or fact in common. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties." It has been held that this discretion of the trial court in such cases will not be controlled unless such discretion is manifestly abused. See Ryder Truck Rental, Inc. v. Mayo, 120 Ga. App. 495 (171 SE2d 542). Compare Lynn v. Wagstaff Motor Co., 126 Ga. App. 516 (191 SE2d 324).

The statute provides two situations where permissive intervention is permitted, (1) where a statute so provides and (2) where the *575 applicant's claim or defense and the main action have a question of law or fact in common.

While § 12 of the Act of 1957 (Ga. L. 1957, pp. 420, 431; Code Ann. § 69-1212) does not expressly provide for intervention by adjoining property owners it does provide that they may seek the enforcement of such zoning ordinances. Thus their claim or defense and the main action would have a common question of law or fact so as to authorize such intervention. Accordingly, the judgment permitting such intervention in the case sub judice was not error.

3. A review of the issue as made by the pleadings together with the affidavits and exhibits in support of and in opposition to the appellants' motion for summary judgment do not remove all issues of fact from the case so as to demand a judgment for the plaintiff. The trial court properly denied the motion for summary judgment.

Judgment affirmed in part; reversed in part. All the Justices concur.