Nelson v. Bloodworth
| Decision Date | 28 January 1977 |
| Docket Number | No. 31657,31657 |
| Parties | James F. NELSON v. Leolia Lee BLOODWORTH et al. |
| Court | Georgia Supreme Court |
James F. Nelson, Jr., Nelson & Nelson, Dublin, for appellant.
Walter A. Scott, Boone, Scott & Boone, Irwinton, for appellees.
Appellant contends that he had been improperly denied a default judgment on his complaint for injunction and declaratory judgment and, alternatively, that he has been improperly denied injunction and declaratory judgment based upon prescriptive title to certain mineral rights in the land to which he has otherwise had fee simple record title for over seven years.
In 1941 the common grantor conveyed all bauxite on a 273-acre tract in Wilkinson County to R. M. Lee with right of access. There was some mining of the bauxite in 1941 and '42, but no mining has been conducted on the property in the past thirty years. Mr. Lee's widow, Leolia Lee, took this mineral interest by intestate succession. She remarried and as Leolia Lee Bloodworth conveyed the interest to Sidney S. Miller, Inc., by warranty deed on December 23, 1975.
On February 25, 1955, appellant was granted a purportedly one-half undivided fee simple interest in the tract from W. F. Belote, a successor to the common grantor. Appellant was granted the remaining purportedly undivided fee simple interest by Belote on April 4, 1961. Appellant seeks a declaration that he is the owner of all interests in the tract including the mineral interests. He contends that he acquired the mineral interest pursuant to Ga.L.1975, p. 725, Code Ann. § 85-407.1.
Suit against Mrs. Bloodworth and Sidney S. Miller, Inc. was filed on December 22, 1975, and a temporary restraining order prohibiting entry upon the property was entered. The complaint and order were served on December 29. An amendment seeking to add Sidney S. Miller, Inc., as a defendant was filed on January 15, 1976. At a hearing on February 10, it was stipulated and agreed that the hearing should proceed and that defendant Sidney S. Miller, Inc., would be bound by the evidence and judgment of the court entered upon said hearing.
On April 29, appellant moved for default judgment on the ground that no defensive pleadings had been filed by any defendant. The trial court denied the motion for default judgment, refused to continue the interlocutory injunction and denied the prayers for injunctive and declaratory relief. The court found as a fact that the matter of declaratory judgment was well as injunctive relief was before the court at the hearing on February 10, i.e., that the court had before it the merits of the declaratory judgment complaint on February 10.
1. A complaint for declaratory judgment can be tried at any time twenty days after service. Code Ann. § 110-1104. A complaint seeking injunctive relief may also be tried before answer is due or before a default judgment may be entered. Code Ann. § 81A-165(a)(2).
We hold that where, as here, before entry of default judgment, 1 trial or hearing on the merits for final relief is held in a suit for declaratory judgment or injunction or both, and the defendant appears and opposes the relief sought, the trial court may treat the evidence adduced as constituting the answer of the defendant and refuse to enter declaratory or injunctive relief by default if any evidence adduced would authorize judgment in favor of the defendant. In Times-Journal, Inc. v. Jonquil Broadcasting Co., 226 Ga. 673, 177 S.E.2d 64 (1970), there had been no trial or permanent injunction hearing.
The court did not err in overruling the motion to enter default judgment.
2. The fee simple owner of land may sever the mineral interests by conveying such interests absolutely and in fee simple. Brooke v. Dellinger, 193 Ga. 66, 73, 17 S.E.2d 178, 182 (1941). The language of the bauxite conveyance in this case clearly...
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Hayes v. Howell
...action is brought by the owner of the remaining fee after that time. This statute was ameliorated by our holding in Nelson v. Bloodworth, 238 Ga. 264, 232 S.E.2d 547 (1977), that suit cannot be brought under the 1975 act until 7 years after its effective date (July 1, 1975). Accord, Johnson......
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Mixon v. One Newco, Inc., 88-8301
...(1987); Larkin v. Laster, 254 Ga. 716, 334 S.E.2d 158 (1985); Johnson v. Bodkin, 241 Ga. 336, 247 S.E.2d 764 (1978); Nelson v. Bloodworth, 238 Ga. 264, 232 S.E.2d 547 (1977). Notwithstanding these references to "adverse possession," our analysis of OCGA Sec. 44-5-168 and Georgia cases const......
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Milner v. Bivens, 42611
...to mineral rights obtained prior to the effective date of the statute, i.e., 1975, although, in accordance with Nelson v. Bloodworth, 238 Ga. 264, 232 S.E.2d 547 (1977), suit cannot be brought under the 1975 Act until seven years after its effective date. 2 In Hinson v. Loper, 251 Ga. 239, ......
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Teamsters Local 515 v. Roadbuilders, Inc. of Tennessee, 38462
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...v. Harbor Hills Development, L.P., 896 So. 2d 781 (Fla. Dist. Ct. App. 2005). [52] Ga. Code Ann. § 44-5-168 . See Nelson v. Bloodworth, 238 Ga. 264, 232 S.E.2d 547, 57 O.&G.R. 8 (1977). [53] Hayes v. Howell, 251 Ga. 580, 308 S.E.2d 170, 79 O.&G.R. 219 (1983). [54] Mixon v. One Newco, Inc., ......
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