City of Summerville v. Georgia Power Co.

• Decision Date: 14 September 1948
• Docket Number: 16312.
• Citation: 49 S.E.2d 661,204 Ga. 276
• Parties: CITY OF SUMMERVILLE v. GEORGIA POWER CO.
• Court: Georgia Supreme Court

49 S.E.2d 661

204 Ga. 276

CITY OF SUMMERVILLE v. GEORGIA POWER CO.

No. 16312.

Supreme Court of Georgia

September 14, 1948

Jesse M. Sellers and T. J. Espy, Jr., both of Summerville, for plaintiff in error.

MacDougald Troutman, Sams & Branch and Dudley Cook, all of Atlanta and Barry Wright and Wright, Rogers, Magruder & Hoyt, all of Rome, for defendant in error.

Syllabus Opinion by the Court.

CANDLER Justice.

The exception here is to a judgment sustaining a general demurrer to a petition seeking declaratory relief. The petition alleges that on June 13, 1924, the City Council of Summerville purportedly, but illegally, granted to Georgia Railway & Power Company, defendant's predecessor permission to occupy and use the streets and public places of the City of Summerville for the purpose of erecting and maintaining an electric distribution system therein. The claimed franchise was from the beginning, and is now, illegal and void because the council granted it without first complying with those charter requirements providing that no such permission could be legally granted until notice of an application therefor had been posted at the county courthouse door for ten days and published in the official county gazette once a week for two weeks. The prayers were for process, rule nisi fixing time and place for hearing, judgment declaring the claimed franchise 'null and void and of no legal effect from the beginning,' and for general relief. Held 1. 'It is always the duty of this court, with or without motion, to consider the question of its jurisdiction in all cases in which there may be any doubt as to the existence of such jurisdiction.' Dade County v. State of Georgia, 201 Ga. 241, 39 S.E.2d 473, 474.

2. The jurisdiction of this court is fixed by article 6, section 2, paragraph 4 (Code Ann.Supp. § 2-3704) of the constitution of 1945, and all appellate jurisdiction not specifically given to this court is by article 6, section 2, paragraph 8 (Code Ann.Supp. § 2-3708) of the same constitution conferred upon the Court of Appeals.

3. When this case was orally argued, we requested counsel for the parties to submit briefs on the question of our jurisdiction of the writ of error. In the brief filed for plaintiff in error, it is insisted that the present case is one in equity and for that reason jurisdiction is in this court. The brief for defendant in error concedes that the Court of Appeals has jurisdiction of the cause. Whether an action is one at law or in equity is determined by the allegations of the petition and the nature of the relief prayed, and not by designation given to the action by the pleader. Steed v. Savage, 115 Ga. 97, 41 S.E. 272; Fowler v. Davis, 120 Ga. 442, 47 S.E. 951; Griffin v. Collins, 122 Ga. 102, 110, 49 S.E. 827; Taylor Lumber Co. v. Clark Lumber Co., 159 Ga. 393 125 S.E. 844; Burgess v. Ohio National...