Atkinson v. Drake

Supreme Court of Georgia

Atkinson v. Drake

89 S.E.2d 888, 212 Ga. 26, 1955 Ga. LEXIS 529

CourtSupreme Court of Georgia

DecidedOctober 11, 1955

Docket19065

StatusPublished

Cited by2 cases

This text of 89 S.E.2d 888 (Atkinson v. Drake) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Atkinson v. Drake, 89 S.E.2d 888, 212 Ga. 26, 1955 Ga. LEXIS 529 (Ga. 1955).

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Opinion

Duckworth, Chief Justice.

Where the only equitable relief sought was an injunction against the obstruction or closing of a private way after the obstruction had been placed therein, the petition was subject to general demurrer, since there was an available remedy at law under Code §83-119. Haney v. Sheppard, 207 Ga. 158 (60 S. E. 2d 453). Hence the amendment thereto, alleging that the plaintiff had removed the obstructions and the defendant “threatens to re-erect and unless restrained will re-erect and . . . close the driveway,” fails to breathe life into the lifeless petition no matter how good a cause of action the amended petition might now allege as to the alleged threats. See Code §§ 81-1302, 81-1303. It follows that the court erred in overruling the general demurrer to the petition as amended.

Judgment reversed.

All the Justices concur.

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Duckworth, Chief Justice.

Where the only equitable relief sought was an injunction against the obstruction or closing of a private way after the obstruction had been placed therein, the petition was subject to general demurrer, since there was an available remedy at law under Code §83-119. Haney v. Sheppard, 207 Ga. 158 (60 S. E. 2d 453). Hence the amendment thereto, alleging that the plaintiff had removed the obstructions and the defendant “threatens to re-erect and unless restrained will re-erect and . . . close the driveway,” fails to breathe life into the lifeless petition no matter how good a cause of action the amended petition might now allege as to the alleged threats. See Code §§ 81-1302, 81-1303. It follows that the court erred in overruling the general demurrer to the petition as amended.

Judgment reversed.

All the Justices concur.

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Bluebook (online)

89 S.E.2d 888, 212 Ga. 26, 1955 Ga. LEXIS 529, Counsel Stack Legal Research, https://law.counselstack.com/opinion/atkinson-v-drake-ga-1955.

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