Brown v. Cobb County, 19175
| Decision Date | 13 February 1956 |
| Docket Number | No. 19175,19175 |
| Parties | Jennie Maude Attaway BROWN v. COBB COUNTY et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court
This action having been brought squarely under the Declaratory Judgments Act--even if alleging a cause of action for some of the relief sought at law or equity--fails to allege any fact or circumstance which necessitates an immediate determination because of uncertainty or insecurity with respect to the propriety of some future act or conduct properly incident to the petitioner's alleged rights, and it is subject to general demurrer since it was brought under the procedure for a declaratory judgment.
The proceeding here is one for a declaratory judgment under the provisions of Code, Ch. 110-11, Ann.Supp., Ga.L.1945, p. 137, in which the petitioner alleges she is the owner of certain property which, having been condemned, has now been returned to her by reason of non-use; that the defendants have been maintaining public and private roads over this property; and that she has been forcibly prevented from taking possession of the property by reason of the county police officers of Cobb County at the direction of the defendant Ward; and she prays for a declaration of rights, title, and right of possession, injunctive relief, process, compensation, damages, and for the court to set a date for a hearing, and for a jury to be drawn to determine the issues of fact. After a hearing on the general demurrers filed thereto, they were sustained and the exception here is to that judgment.
Frank E. Blankenship, Atlanta, for plaintiff in error.
J. G. Roberts, Marietta, for defendants in error.
Counsel for the plaintiff in error strongly insist that, even if the petition does not state a cause of action entitling the petitioner to a declaratory judgment, it states a cause of action for other relief and it was error to sustain the general demurrer and dismiss the petition. Thus this contention calls for a procedural review of the difference between the declaratory--judgment action and other remedies at law and equity.
'All suits in the superior courts for legal or equitable relief or both shall be by petition' and pray for process. Code, § 81-101. But these requirements do not apply to 'special statutory proceedings.' Code, § 81-102. And the day on which an original petition is deposited in the clerk's office shall be known as the return day of that case. Code Ann.Supp. § 81-111, Ga.L.1946, pp. 761, 767. The clerk must annex to every petition a process, unless it is waived, which is signed by the clerk or his deputy bearing teste in the name of the judge, requiring the defendant to answer the petition within 30 days after service. If the period of time between the appearance day and the day on which the next regular term of court is scheduled by law to begin is 30 days or more, the case is returnable to that term, but if that period is less than 30 days, the case shall be returnable to the next regular term thereafter. Code Ann.Supp. § 81-201, Ga.L.1946, pp. 761, 768. As to all classes of cases where there is an appearance term, when service is not made the length of time required by law before the appearance term, the service is good for the next succeeding term which shall be the appearance term. Code Ann.Supp. § 81-218, Ga.L.1946, pp. 761, 763.
The foregoing statutory provisions are applicable to all suits at law or in equity, except special statutory proceedings which are exempted...
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