Pinkard v. Mendel
| Decision Date | 10 November 1960 |
| Docket Number | No. 20977,20977 |
| Citation | 216 Ga. 487,117 S.E.2d 336 |
| Parties | Mrs. D. E. PINKARD et al. v. Simon MENDEL et al., Trustees. |
| Court | Georgia Supreme Court |
Troutman, Sams, Schroder & Lockerman, Allen E. Lockerman, Robert L. Pennington, Atlanta, for plaintiff in error.
John L. Westmoreland, John L. Westmoreland, Jr., Harry P. Hall, Jr., Atlanta, for defendant in error.
On December 11, 1957, Simon Mendel and Mrs. Sarah Koplin, Trustees of Trust 'B' of the Last Will and Testament of Hyman Mendel, as successor lessees of certain described property located on Houston Street in the City of Atlanta, occupied and subleased by Carithers-Wallace-Courtenay, Inc., filed their suit in Fulton Superior Court for a declaratory judgment and an injunction against Mrs. D. E. Pinkard and Mrs. S. T. Leathers, successor lessors, the petition alleging that a lease contract was entered into for a period beginning October 15, 1909, and running for 99 years, a copy of the lease being attached to and made a part of the petition, paragraph 8 of the lease providing that 'The parties of the second part shall be at liberty at any time to make any repairs or improvements that they may wish upon the leased premises; but before the improvements now upon said premises or hereafter thereupon placed by the parties of the second part are removed or materially changed, notice shall be given by the parties of the second part to the parties of the first part of the intention to remove or materially alter and change said buildings; and before removing the said improvements or materially altering the same, the parties of the second part shall give to the parties of the first part a bond, with good and solvent sureties, conditioned upon replacing upon said leased premises improvements of equal value with the improvements to be removed or materially changed'; and that the defendants had notified plaintiffs that the lease contract was canceled and at an end by reason of a claimed violation of paragraph 8 thereof. Plaintiffs alleged that there had been no violation of paragraph 8, or any other provision of the lease, and that they were entitled to a declaration of their rights thereunder for the full term of 99 years; that defendants are threatening to commence dispossessory proceedings, and unless they be restrained and enjoined, plaintiffs will be irreparably damaged by being ousted from the leased premises; and that plaintiffs are uncertain and insecure with respect to the propriety of their future acts and conduct and their rights under the lease. The prayers were for a declaratory judgment, and that 'defendants be temporarily restrained and permanently enjoined from commencing and prosecuting any dispossessory or other proceeding with respect to the occupancy of said leased premises by petitioners and/or their sublessee pending the adjudication of the issues raised in this petition.' On the same day this petition was filed, defendants filed in Fulton Superior Court against plaintiffs a dispossessory-warrant proceeding. Thereafter, defendants filed general and special demurrers to plaintiffs' petition contending that relief under the Declaratory Judgments Act was not a proper remedy; and after a hearing on June 1, 1959, one of the special demurrers was sustained, with leave to amend, and the other demurrers were overruled. On June 10, 1959, plaintiffs filed an amendment to their petition in an attempt to meet the demurrer that was sustained, and defendants filed renewed general and special demurrers to the petition as amended. On July 20, 1959, the renewed general demurrers were overruled.
On April 28, 1959, plaintiffs, by amendment, filed their motion for injunction, in which they set out that subsequently to the filing of their petition for declaratory relief under the Declaratory Judgments Act, defendants had filed a dispossessory warrant affidavit and proceedings against plaintiffs on the same set of facts as contained in the declaratory-judgment suit of the plaintiffs, and plaintiffs' suit having been filed first, they prayed that a trial of the dispossessory warrant proceedings be temporarily restrained and enjoined until a hearing on the declaratory judgment suit of plaintiffs had been held. To this motion, defendants filed a response, in which they admitted that the issues in both suits were identical, but prayed that such injunction be denied. On June 1, 1959, plaintiffs' motion for injunction was granted, and defendants were enjoined from proceeding with the dispossessory-warrant case.
The declaratory-judgment suit came on for trial before a jury, and on December 18, 1959, a verdict was returned for the plaintiffs, and judgment was entered thereon on February 2, 1960, which recited in part that 'it is hereby considered, ordered and adjudged that judgment be and the same is hereby entered in favor of p...
To continue reading
Request your trial
-
Ditmyer v. American Liberty Ins. Co., 43155
...any further undirected action incident to its rights, which action without direction would jeopardize its interest. Pinkard v. Mendel, 216 Ga. 487, 490(2), 117 S.E.2d 336; State Hwy. Dept. v. Georgia S. & F.R. Co., 216 Ga. 547, 548(2), 117 S.E.2d 897; Dunn v. Campbell, 219 Ga. 412, 415, 134......
-
LaSalle Nat. Ins. Co. v. Popham
...of legatees and devisees had accrued under the will and thus there was no necessity for a declaration of those rights, or Pinkard v. Mendel, 216 Ga. 487, 117 S.E.2d 336, also seeking a declaration of rights under the will of a deceased testator, or Dunn v. Campbell, 219 Ga. 412, 134 S.E.2d ......
-
Chatham County Bd. of Assessors v. Jepson
...only when "necessary in order to relieve the plaintiffs from the risk of taking any future undirected action." Pinkard v. Mendel, 216 Ga. 487, 490(2), 117 S.E.2d 336 (1960). See George v. Dept. of Natural Resources, 250 Ga. 491, 493, 299 S.E.2d 556 (1983) ("Shippen v. Folsom, [200 Ga. 58, 3......
-
Sentinel Offender Svcs., LLC v. Glover, s. S14A1033
...invoke this Court's jurisdiction over cases involving equity. See Ga. Const. of 1983, Art. VI, Sec. VI, Par. III ; Pinkard v. Mendel, 216 Ga. 487, 490, 117 S.E.2d 336 (1960). Moreover, this Court has exclusive appellate jurisdiction over the constitutional question raised and ruled on by th......