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Petition for injunction. Before Judge George S. Carpenter. Clarke Superior Court. November 23, 1949.
WYATT, Justice.
There was no error in the judgment sustaining the general demurrer and dismissing the petition in this case.
At the same time a contract was entered into between the parties, by virtue of which the power company was obligated to furnish certain municipal lighting to the City of Athens for a period of ten years; on terms stated in the contract.
On May 8, 1939, the exact contract as to the items of property was again entered into for a term of ten years. The rental contract of May 8, 1939, has expired and has not been renewed or extended. The City of Athens has filed suit against the power company in the Superior Court of Clarke County, seeking to recover the sum of $500 per month as reasonable rental for the property after May 8, 1949. To this suit an answer has been filed, contending that the sum of $110 per month is a reasonable rental for the property. The petition further alleges: That, of the poles and cross-arms rented, all but one pole and ten cross-arms have worn out, and have been replaced by the power company, and a number of the other items rented have been worn out and replaced, by the power company; that the pins and insulators of the city have been unavoidably mingled with the pins and insulators of the power company; that previous to the above-referred-to contract of rental, there was in existence a contract between the power company's predecessor, Athens Railway and Electric Company, and the City of Athens, dated February 25, 1920, which was in force until the said contract with the power' company was executed; that, under this contract, the power company's predecessor paid no rental for the use of the city's street lighting equipment. It was provided that the power company s predecessor should maintain said poles and lines without expense to the city and, upon, expiration of the contract, the same should be returned to the city in as good condition as when received. This provision is not included in the contract of May 8, 1929, and May 8, 1939, executed by the power company, but the following provision appears: "Georgia Power Company agrees and obligates itself, its successors and assigns, to pay annually, at the expiration of each year of this lease agreement, to the City of Athens the said rental of Thirty-Five Hundred ($3500.00) Dollars, and to maintain and operate the said street-lighting system, the same as if the entire system was owned by it." The petition further alleges that the power company is now unable to return all of the specific rented articles.
The prayers of the petition were: that the suit for rent be consolidated with this suit and all issues be determined in the consolidated suit; that the city be enjoined from prosecuting the suit for rent; that the liability of the power company to the city for rent of the equipment from May 8, 1949, be determined that the liability of the power company to the city for the value of the rented equipment be determined; "That it be decreed by this court that plaintiff's payment of the amounts so determined and adjudged be in full compensation to defendant for the equipment rented to plaintiff, and for plaintiff's use thereof, and in full satisfaction of all claims of every character of defendant against plaintiff arisen out of matters herein set forth"; and for general relief.
A general demurrer to the petition was filed on the grounds: that the petition stated no cause of action; that its allegations do not entitle the plaintiff to any equitable relief; that the allegations do not entitle the plaintiff to the relief prayed for; that the plaintiff has an adequate remedy at law; that the plaintiff could obtain complete relief by filing defenses or a cross-bill in the suit which the petition seeks to enjoin.
The trial court sustained the general demurrer, and dismissed the petition. The exception is to that judgment.
"The superior courts, on the trial of any civil case, shall give effect to all the rights of the parties, legal or equitable, or both, and apply, on such trial remedies or relief, legal or equitable, or both, in favor of either party, such as the nature of the case may allow or require." Code, 37-901. "Any person claiming equitable relief may at any time, in aid of his suit, apply for and obtain, by proper pleading and proof, any of the extraordinary remedies known in equity, or such as are or may be granted by the judge of the superior court exercising equity jurisdiction, upon the same terms and conditions as are now granted in equitable proceedings." 37-904. "A defendant to any suit or claim in the superior court, whether such suit be for legal or equitable relief, may claim legal or equitable relief, or both, by framing proper pleadings for that purpose, and sustaining them by sufficient evidence." 37-905. "Any defendant may also, by proper pleadings and sufficient evidence, obtain the benefit of extraordinary remedies allowed in equitable proceedings by the superior court or by the judge thereof exercising equity jurisdiction, at such times and on such terms as such remedies are granted by said court or by said judge exercising equity jurisdiction." 37-906. "Whenever any extraordinary relief or remedy as known in equity is claimed in aid of any action or defense, the same may be claimed from the superior courts or judges thereof either in the original petition and answer, or by amendment thereto by special petition and pleading for that purpose." 37-907.
The case of Peterson v. Lott, 137 Ga. 179 (73 S. E. 15), cited and relied upon by the plaintiff in error, differs on its facts from the instance case. There the relief sought by way of cross-bill was based upon a state of facts that did not exist at the time the cause of action alleged by the plaintiff's petition had accrued, and would in no way affect his right to recover. Neither would it in any way affect the amount of the recovery by the plaintiff. The court there properly held that the subject-matter of the cross-bill did not grow out of the original suit, and was therefore not germane. In the instant case, every contention made by the power company grows directly out of the rental contract, by virtue of which the power company obtained possession of the property belonging to the city, and which is the subject-matter of the suit for rent sought to be enjoined. All the alleged facts upon which the power company bases its petition in the instant case existed at the time the suit for rent was instituted, and, if the contentions of the power company can be maintained, will very materially affect the right of the city to recover rent.
The suit to collect rent, sought to be enjoined, is pending in a superior court, in fact, the very court to which the petition in the instant case is addressed. If the power company is entitled to any of the relief sought in its petition--and this we do not now pass upon--the relief can be and should be obtained by appropriate pleadings in the case sought to be enjoined. The Uniform Procedure Act was intended to cover just such a situation as is here presented. It follows, there is no error in the judgment sustaining the general demurrer.
Judgment affirmed. All the Justices concur.
Robert G. Stephens Jr., John L. Green, James Barrow, and Edwin Fortson, for defendant.
Eugene A. Epting and Erwin, Nix & Birchmore, for plaintiff.
Saturday May 23 05:57 EDT

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