City of Summerville v. Sellers

Court of Appeals of Georgia

City of Summerville v. Sellers

61 S.E.2d 160, 82 Ga. App. 361, 1950 Ga. App. LEXIS 1110

CourtCourt of Appeals of Georgia

DecidedSeptember 14, 1950

Docket33148

StatusPublished

Cited by7 cases

This text of 61 S.E.2d 160 (City of Summerville v. Sellers) 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

City of Summerville v. Sellers, 61 S.E.2d 160, 82 Ga. App. 361, 1950 Ga. App. LEXIS 1110 (Ga. Ct. App. 1950).

Pincite

Opinion

Felton, J.

This is a petition for a declaratory judgment wherein the plaintiff requests an adjudication of his rights under an alleged contract with the defendant. The only question in the case is whether the defendant is liable to the plaintiff for a breach of contract. The action, under the decisions of the Supreme Court and this court, clearly does not lie because there is no reason why a simple action for breach of contract will not give full and complete relief. The mere existence of a controversy does not give rise to an action for a declaratory judgment. While likewise the mere existence of another remedy will not necessarily preclude the action, the petition in this case lacks the essential ingredient of an alleged necessity for an adjudication to guide and protect the plaintiff from uncertainty and insecurity with respect to future conduct. Mayor &c. of Athens v. Gerdine, 202 Ga. 197 (42 S. E. 2d, 567); Consolidated Quarries Corp. v. Davidson, 79 Ga. App. 248 (53 S. E. 2d, 231). The action must be dismissed without prejudice to any future action by the plaintiff for a breach of contract if he should desire to bring one.

The court erred in overruling the general demurrer to the petition.

Judgment reversed.

Sutton, C.J., and Worrill, J., concur.

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Felton, J.

This is a petition for a declaratory judgment wherein the plaintiff requests an adjudication of his rights under an alleged contract with the defendant. The only question in the case is whether the defendant is liable to the plaintiff for a breach of contract. The action, under the decisions of the Supreme Court and this court, clearly does not lie because there is no reason why a simple action for breach of contract will not give full and complete relief. The mere existence of a controversy does not give rise to an action for a declaratory judgment. While likewise the mere existence of another remedy will not necessarily preclude the action, the petition in this case lacks the essential ingredient of an alleged necessity for an adjudication to guide and protect the plaintiff from uncertainty and insecurity with respect to future conduct. Mayor &c. of Athens v. Gerdine, 202 Ga. 197 (42 S. E. 2d, 567); Consolidated Quarries Corp. v. Davidson, 79 Ga. App. 248 (53 S. E. 2d, 231). The action must be dismissed without prejudice to any future action by the plaintiff for a breach of contract if he should desire to bring one.

The court erred in overruling the general demurrer to the petition.

Judgment reversed.

Sutton, C.J., and Worrill, J., concur.

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Bluebook (online)

61 S.E.2d 160, 82 Ga. App. 361, 1950 Ga. App. LEXIS 1110, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-summerville-v-sellers-gactapp-1950.

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