Bivings v. City of Atlanta

Court of Appeals of Georgia

Bivings v. City of Atlanta

97 S.E.2d 384, 95 Ga. App. 139, 1957 Ga. App. LEXIS 738

CourtCourt of Appeals of Georgia

DecidedFebruary 18, 1957

Docket36464

StatusPublished

This text of 97 S.E.2d 384 (Bivings v. City of Atlanta) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bivings v. City of Atlanta, 97 S.E.2d 384, 95 Ga. App. 139, 1957 Ga. App. LEXIS 738 (Ga. Ct. App. 1957).

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Opinion

Felton, C. J.

This case falls squarely within the facts and rulings in Mayor &c. of Athens v. Gerdine, 202 Ga. 197, 198 (2) (42 S. E. 2d 567), in which it was held: “Applying the foregoing principle to the petition in the instant case, seeking a declaratory judgment, the demurrer, challenging the propriety of a declaratory judgment, should have been sustained. The petition showed that the Mayor and Council of Athens, after adopting an ordinance providing for the resurfacing of a certain street adjacent to the property of the plaintiff, had actually performed the work of resurfacing, and had assessed his property for his proportionate part of the cost of the work. The plaintiff alleges that the defendants had no right to assess his property and that, therefore, the assessment was void for a number of reasons assigned; and prayed that the assessment be declared invalid, and that the defendants be restrained from issuing and levying an execution under the assessment. The petition in no wise indicates that he is without an adequate remedy in law or equity, nor does it show the existence of any facts or circumstances such as would render an adjudication of his rights necessary in order to relieve him from the risk of taking any future undirected action incident to his rights, which action without direction would jeopardize his interest.”

The court did not err in sustaining the general demurrer to the amended petition and in dismissing the action.

Judgment affirmed.

Quillian and Nichols, JJ., concur.

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Felton, C. J.

This case falls squarely within the facts and rulings in Mayor &c. of Athens v. Gerdine, 202 Ga. 197, 198 (2) (42 S. E. 2d 567), in which it was held: “Applying the foregoing principle to the petition in the instant case, seeking a declaratory judgment, the demurrer, challenging the propriety of a declaratory judgment, should have been sustained. The petition showed that the Mayor and Council of Athens, after adopting an ordinance providing for the resurfacing of a certain street adjacent to the property of the plaintiff, had actually performed the work of resurfacing, and had assessed his property for his proportionate part of the cost of the work. The plaintiff alleges that the defendants had no right to assess his property and that, therefore, the assessment was void for a number of reasons assigned; and prayed that the assessment be declared invalid, and that the defendants be restrained from issuing and levying an execution under the assessment. The petition in no wise indicates that he is without an adequate remedy in law or equity, nor does it show the existence of any facts or circumstances such as would render an adjudication of his rights necessary in order to relieve him from the risk of taking any future undirected action incident to his rights, which action without direction would jeopardize his interest.”

The court did not err in sustaining the general demurrer to the amended petition and in dismissing the action.

Judgment affirmed.

Quillian and Nichols, JJ., concur.

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Bluebook (online)

97 S.E.2d 384, 95 Ga. App. 139, 1957 Ga. App. LEXIS 738, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bivings-v-city-of-atlanta-gactapp-1957.

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