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Declaratory judgment. Before Judge Manning. Cobb Superior Court. September 10, 1955.
DUCKWORTH, Chief Justice.
The proceeding here is one for a declaratory judgment, under the provisions of Code (Ann. Supp.) Ch. 110-11, (Ga. L. 1945, p. 137), in which the petitioner alleges that she is the owner of certain property which, having been condemned, has now been returned to her by reason of non-use; that the defendants have been maintaining public and private roads over this property; and that she has been forcibly prevented from taking possession of the property by reason of the county police officers of Cobb County at the direction of the defendant Ward; and she prays for a declaration of rights, title, and right of possession, injunctive relief, process, compensation, damages, and for the court to set a date for a hearing, and for a jury to be drawn to determine the issues of fact. After a hearing on the general demurrers filed thereto, they were sustained and the exception here is to that judgment.
Counsel for the plaintiff in error strongly insist that, even if the petition does not state a cause of action entitling the petitioner to a declaratory judgment, it states a cause of action for other relief and it was error to sustain the general demurrer and dismiss the petition. Thus this contention calls for a procedural review of the difference between the declaratory-judgment action and other remedies at law and equity.
"All suits in the superior courts for legal or equitable relief or both shall be by petition" and pray for process. Code 81-101. But these requirements do not apply to "special statutory proceedings." Code 81-102. And the day on which an original petition is deposited in the clerk's office shall be known as the return day of that case. Code (Ann. Supp.) 81-111 (Ga. L. 1946, pp. 761, 767). The clerk must annex to every petition a process, unless it is waived, which is signed by the clerk or his deputy bearing teste in the name of the judge, requiring the defendant to answer the petition within 30 days after service. If the period of time between the appearance day and the day on which the next regular term of court is scheduled by law to begin is 30 days or more, the case is returnable to that term, but if that period is less than 30 days, the case shall be returnable to the next regular term thereafter. Code (Ann. Supp.) 81-201 (Ga. L. 1946, pp. 761, 768). As to all classes of cases where there is an appearance term, when service is not made in the length of time required by law before the appearance term, the service is good for the next succeeding term, which shall be the appearance term. Code (Ann. Supp.) 81-218 (Ga. L. 1946, pp. 761, 773).
The foregoing statutory provisions are applicable to all suits at law or in equity, except special statutory proceedings which are exempt therefrom by Code 81-102. It is obvious, therefore, that, in the absence of a waiver by the defendant, no petition for relief at law or in equity or both can be maintained, or states a cause of action, unless it conforms thereto. Of course it is settled law that, when a petition meets the foregoing requirements and prays for both legal and equitable relief, it is not subject to dismissal on demurrer because its allegations do not authorize all relief sought if it alleges enough to authorize any of the relief prayed. Arteaga v. Arteaga, 169 Ga. 595 (4) (151 S. E. 5); Shingler v. Shingler, 184 Ga. 671 (2) (192 S. E. 824); Parnell v. Wooten, 202 Ga. 443 (43 S. E. 2d 673); Pardue Medicine Co. v. Pardue, 194 Ga. 516 (22 S. E. 2d 143); Kanes v. Koutras, 203 Ga. 570 (47 S. E. 2d 558); Mullins v. Barrett, 204 Ga. 11 (48 S. E. 2d 842).
And since it fails to allege a situation of uncertainty and insecurity with respect to the propriety of some future act or conduct, which action without such direction might reasonably jeopardize the petitioner's interest, it fails to allege a cause of action for a declaration of rights. Clein v. Kaplan, 201 Ga. 396 (40 S. E. 2d 133); Mayor &c. of Athens v. Gerdine, 202 Ga. 197 (42 S. E. 2d 567); Sumner v. Davis, 211 Ga. 702 (88 S. E. 2d 392). Accordingly, the court did not err in sustaining the demurrer and dismissing the petition.
Judgment affirmed. All the Justices concur.
J. G. Roberts, contra.
Frank E. Blankenship, for plaintiff in error.
Saturday May 23 02:17 EDT

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