Hill, J.
1. The judge properly struck the name of the City of Atlanta as a party to the case.
2. One of the issues in the case was whether Walnut Street had been dedicated and accepted by the City of Atlanta; and on that issue the resolution of the city council of 1916 was admissible as tending to show a recognition by the city of the existence of the street, and the court erred in rejecting it.
3. Other specific assignments, where a question is raised for determination by this court, show no reversible error.
4. As a new trial is granted in the case, no opinion is expressed as to whether the evidence authorized the verdict.
Appeal and Error, 4 O. J. p. 649, n. 36.
Municipal Corporations, 28 Cyc. p. 844,’ n. 17; p. 865, n. 42.
Judgment reversed.
All the Justices concur.
The defendants answered, admitting certain allegations and denying others, and moved to modify the restraining order theretofore granted; and after hearing, the court modified the restraining order to the extent of allowing the defendants to continue the construction of the building, “but preserving the status, so that the case might be tried on its merits,” etc. The plaintiff filed several amendments which need not be set out, except that he alleged that he was “entitled to maintain this action to enjoin such nuisance,” and prayed for its abatement. He filed also an ancillary petition praying that the City of Atlanta be made a defendant to the suit; and the city was accordingly made a party. It answered, and averred that it was under no duty to settle boundary lines disputed between private parties, and was not required to make any survey or locate the lines of any streets or sidewalks. It admitted that it was the duty of the city to keep its streets and sidewalks in a reasonably safe condition for travel by the public, but denied that a positive duty is laid upon it of paving streets or sidewalks. It admitted that it had taken no part in the controversy between plaintiff and defendant. The city subsequently filed a motion to strike its name as a party to this case. The court sustained the motion. A verdict in favor of the defendants was returned. The plaintiff made a motion for new trial, which was overruled, and he excepted.
B. L. Milling, E. W. Chambers, and Chambers & Dickey, for plaintiff.
A. B. Dorsey, J. L. Mayson, and C. 8. Winn, for defendants.