Cotton States Mutual Insurance v. Tabor

112 S.E.2d 771, 101 Ga. App. 52, 1960 Ga. App. LEXIS 785

Opinion

Felton, Chief Judge.

Since the judgment of the court sustaining the general demurrer to the petition for declaratory judgment in this case the defendant in the present action has instituted an action directly against the plaintiff insurance company to recover on the insurance policy in question, the rights and obligations under which the company seeks to have declared in this action. In the action directly against the company in which recovery is sought on the policy the court overruled the demurrers of the insurance company and the company appealed the case to this court and this court ruled thereon in Cotton States Mutual Ins. Co. v. Tabor, 100 Ga. App. 844 (112 S. E. 2d 435), in which all of the questions raised in the present action were answered by this court. In these circumstances it seems that it would be merely an idle gesture for this court, assuming that a case for declaratory judgment is pleaded, to send the case back to the trial court in order that the rights of the insurance company might be declared in accordance with law, since the trial court would be bound by the case above cited or such other judgment as might be rendered by the Supreme Court on certiorari, either of which rulings will have settled all the issues in the case long before there could be a similar review of any decision on the declaration of rights as might be made after a return of this case to the trial court. In such circumstances we hold that the questions raised in the present appeal are moot, and the writ of error is dismissed without prejudice to either party in any respect.

Writ of error dismissed:

Quillian and Nichols, JJ., concur.