Salomon v. Central of Georgia Ry. Co.

• Decision Date: 19 February 1965
• Docket Number: No. 22734,22734
• Citation: 220 Ga. 671,141 S.E.2d 424
• Parties: Sol G. SALOMON v. CENTRAL OF GEORGIA RAILWAY COMPANY et al.
• Court: Georgia Supreme Court

Page 424

141 S.E.2d 424

220 Ga. 671

Sol G. SALOMON v. CENTRAL OF GEORGIA RAILWAY COMPANY et al.

No. 22734.

Supreme Court of Georgia.

Feb. 19, 1965.

Syllabus by the Court

1. The petition failed to state a cause of action for either equitable relief or a declaratory judgment.

2. A petition can not be amended by adding a count seeking to recover on a separate and distinct cause of action.

Aaron Kravitch, John Wright Jones, Savannah, for plaintiff in error.

Hitch, Miller, Beckmann & Simpson, John B. Miller, Savannah, for defendants in error.

HEAD, Presiding Justice.

1. The basic issues asserted by the petition (prior to the addition of count 2) are that the stockholders' meeting of April 26, 1957, was not properly adjourned; that the old board is holding over without authority of law; that the board of directors elected by the plaintiffs at the annual meeting of April 26, 1957, is the legally elected board of directors; and that the defendants have refused to recognize the legal board and have refused them access to the premises to perform their duties.

The plaintiffs prayed for a temporary restraining order and a permanent injunction. The able trial judge construed the original petition (later designated as count 1) as one seeking equitable relief, and ruled that the plaintiffs had an adequate remedy at law by mandamus. Authority was cited by the judge to support this ruling. Counsel for the plaintiffs (plaintiffs in error here) in oral argument and by briefs filed in this court contend that the original petition stated a cause of action for a declaratory judgment.

Section 2 of the Declaratory Judgments Act of 1945 (Ga.L.1945, p. 137; Code Ann. § 110-1102) provides in part as follows: 'The court, in order to maintain the status pending the adjudication of the questions or to preserve equitable rights, may grant injunction and other interlocutory extraordinary relief, in substantially the manner and under the same rules applicable in equity cases.' This provision of the Declaratory Judgments Act is pleaded in the petition, and it is alleged that the plaintiffs 'have no other adequate remedy at law or in equity,' and that in order to guide and protect the plaintiffs from uncertainty and insecurity a declaratory judgment and ancillary relief should be granted by the court.

Whatever rights the plaintiffs may have been denied by the adjournment of the stockholders' meeting, and any rights acquired by them pursuant to the alleged election of a board of directors by them, had fully accrued. '[W]here * * * the petition shows that the rights of the parties have already accrued and no facts or circumstances are alleged which show that an adjudication of the plaintiffs' rights is necessary in order to relieve the plaintiffs from the risk of taking any future undirected action incident to their rights, which action without direction would jeopardize their interests, the petition fails to state a cause of action for declaratory judgment. Summer v. Davis, 211 Ga. 702, 88 S.E.2d 392; State of Ga. v. Hospital Authority of Gilmer County, 213 Ga. 894, 898, 102 S.E.2d 543; McCallum v. Quarles, 214 Ga. 192, 104 S.E.2d 105, and cases there cited.' Pinkard v. Mendel, 216 Ga. 487(2), 117 S.E.2d 336. The petition in the present case, as originally filed, failed to state a cause of action for a declaratory judgment.

There are no allegations of fact in the original petition which would authorize the grant of the prayers for injunction or any other equitable relief. Moreover, there is another reason why the court did not err in...