Kiker v. Hefner, 44085
| Citation | 168 S.E.2d 637,119 Ga.App. 629 |
| Decision Date | 07 May 1969 |
| Docket Number | No. 44085,No. 3,44085,3 |
| Parties | C. W. KIKER, Sr. v. Harold HEFNER, Commissioner, et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court
The trial court did not err in granting summary judgment for the defendants.
The plaintiff is a nonresident owner of real estate in Gilmer County who seeks relief by a petition for declaratory judgment naming various county officials as the defendants. He asks for declarations to the effect that ad valorem property taxes assessed on his property for 1966 above the amount tendered in payment are null and void, that the fi. fa. issued thereon is null and void, that the 1967 digest insofar as it relates to him is null and void, that any amount shown to be due over the amount shown by his 1967 tax return is null and void, and that the procedure used in preparing the 1968 tax digest, by assessing property for taxation at 40% of the fair market value and applying statutory exemptions against the 40% valuation, is illegal. He appeals from the grant of a summary judgment for the defendants.
Wright, Walther & Morgan, Clinton J. Morgan, Rome, for appellant.
P. T. McCutchen, Avary Dimmock, Jr., Ellijay, Herman J. Spence, Bobby C. Milam, Blue Ridge, for appellees.
1. The ruling of the trial court refusing to dismiss the petition did not fix the law of the case to preclude final disposal thereof by the simultaneous grant of a summary judgment for the defendants. While a petition may amply meet the liberalized requirements of notice pleading under the Civil Practice Act, so as to preclude dismissal from a consideration of the petition alone, the court has authority to consider matter outside the pleadings, if presented, and if it does, as was done in the present case, it must dispose of the matter under summary judgment procedures. CPA §§ 12, 56; Code Ann. §§ 81A-112(c), 81A-156. We regard the ruling on the petition as merely a prelude to disposition of the matter by a ruling under the summary judgment procedures.
2. The motion for summary judgment is supported by evidence that at the time the petition for declaratory judgment was filed on December 22, 1967, and on the date of the trial court's order on September 6, 1968, granting the motion for summary judgment, cases number 922 and 930 involving substantially the same parties and the same issues were pending in Gilmer Superior Court. The trial court's order of September 6, 1968, recites that 'in case No. 930 Gilmer Superior Court, involving the same defendants, the plaintiff raised substantially the same issues concerning the 1966 ad valorem taxes and this court denied an interlocutoy injunction which was affirmed by the Supreme Court of Georgia in Kiker v. Worley, 223 Ga. 736 (157 S.E.2d 745) (1967),' and that the plaintiff See Kiker v. Hefner, 224 Ga. 511, 162 S.E.2d 731.
A declaratory judgment will not be rendered to give an advisory opinion in regard to...
To continue reading
Request your trial
-
LaSalle Nat. Ins. Co. v. Popham
...v. Mayor, etc., of Baxley, 211 Ga. 1(1), 83 S.E.2d 606; Ulmer v. State Highway Dept., 90 Ga.App. 833, 84 S.E.2d 583; Kiker v. Hefner, 119 Ga.App. 629, 631, 168 S.E.2d 637; Employers Liability Assur. Corp. v. Berryman, 123 Ga.App. 71(1), 179 S.E.2d 2. Where, as in the present case, an action......
- Anderson v. Crippen, 45027
-
Tennessee Farmers Mut. Ins. Co. v. Wheeler, 67379
...competent jurisdiction, in which the same questions may be raised and determined.' [Cit.]" Employers Liab., supra; Kiker v. Hefner, 119 Ga.App. 629, 631, 168 S.E.2d 637 (1969). To permit the declaratory judgment action to proceed under these circumstances is "manifestly unwise and unnecessa......
-
State Farm Mut. Auto. Ins. Co. v. Hillhouse
...v. Mayor, etc., of Baxley, 211 Ga. 1(1), 83 S.E.2d 606; Ulmer v. State Hwy. Dept., 90 Ga.App. 833, 84 S.E.2d 583; Kiker v. Hefner, 119 Ga.App. 629, 631, 168 S.E.2d 637; Employers Liability Assur. Corp. v. Berryman, 123 Ga.App. 71(1), 179 S.E.2d 4. The decision in the case of LaSalle Nationa......