Mock v. Darby

Court of Appeals of Georgia

Mock v. Darby

137 S.E.2d 81, 109 Ga. App. 620, 1964 Ga. App. LEXIS 934

CourtCourt of Appeals of Georgia

DecidedApril 24, 1964

Docket40636

StatusPublished

Cited by9 cases

This text of 137 S.E.2d 81 (Mock v. Darby) 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

Mock v. Darby, 137 S.E.2d 81, 109 Ga. App. 620, 1964 Ga. App. LEXIS 934 (Ga. Ct. App. 1964).

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Opinion

Eberhardt, Judge.

The -only exception in this declaratory judgment case is to the overruling of the general demurrer to the petition. “Whether or not the plaintiff is entitled to a declaratory judgment upon a hearing, is not dependent upon a determination of whether or not his contention in the controversy be a correct one. It may be found untenable • upon the hearing, but he will not for that reason be sent from court, but is entitled to have the court, upon evidence and not upon the hearing of a general demurrer, declare his rights or lack of any right in the premises. To withstand a general demurrer it is only necessary that the plaintiff show an existing justiciable controversy, as provided by the Declaratory Judgment Act. It is not necessary that the petition go farther and show that the plaintiff's contention is correct.” Georgia Cas. &c. Co. v. Turner, 86 Ga. App. *621 418, 422 (71 SE2d 773). Accord: Parks v. Jones, 88 Ga. App. 188 (76 SE2d 449); Darling v. Jones, 88 Ga. App. 812, 815 (78 SE2d 94); Griffin v. Hardware Mut. Ins. Co., 93 Ga. App. 801, 803 (1) (92 SE2d 871); Buffington v. New Hampshire Fire Ins. Co., 104 Ga. App. 139, 141 (1) (121 SE2d 270). See St. Paul Fire &c. Co. v. Johnson, 216 Ga. 437 (117 SE2d 459). The petition here presented a justiciable controversy and the general demurrer was properly overruled.

Decided April 24, 1964. Neville & NeviUe, for plaintiff in error. Allen & Edenfield, contra.

Judgment affirmed.

Bell, P. J., and Jordan, J., concur.

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Eberhardt, Judge.

The -only exception in this declaratory judgment case is to the overruling of the general demurrer to the petition. “Whether or not the plaintiff is entitled to a declaratory judgment upon a hearing, is not dependent upon a determination of whether or not his contention in the controversy be a correct one. It may be found untenable • upon the hearing, but he will not for that reason be sent from court, but is entitled to have the court, upon evidence and not upon the hearing of a general demurrer, declare his rights or lack of any right in the premises. To withstand a general demurrer it is only necessary that the plaintiff show an existing justiciable controversy, as provided by the Declaratory Judgment Act. It is not necessary that the petition go farther and show that the plaintiff's contention is correct.” Georgia Cas. &c. Co. v. Turner, 86 Ga. App. *621 418, 422 (71 SE2d 773). Accord: Parks v. Jones, 88 Ga. App. 188 (76 SE2d 449); Darling v. Jones, 88 Ga. App. 812, 815 (78 SE2d 94); Griffin v. Hardware Mut. Ins. Co., 93 Ga. App. 801, 803 (1) (92 SE2d 871); Buffington v. New Hampshire Fire Ins. Co., 104 Ga. App. 139, 141 (1) (121 SE2d 270). See St. Paul Fire &c. Co. v. Johnson, 216 Ga. 437 (117 SE2d 459). The petition here presented a justiciable controversy and the general demurrer was properly overruled.

Decided April 24, 1964. Neville & NeviUe, for plaintiff in error. Allen & Edenfield, contra.

Judgment affirmed.

Bell, P. J., and Jordan, J., concur.

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137 S.E.2d 81, 109 Ga. App. 620, 1964 Ga. App. LEXIS 934, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mock-v-darby-gactapp-1964.

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