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RINKER et al. v. SPARKS et al.
Declaratory judgment, etc. Columbia Superior Court. Before Judge Kennedy.
1. (a) This court is bound by the record from the court below together with the entries thereon, and where a regular entry or certificate of service appears on the bill of exceptions it must be presumed that the opposing party or his counsel has been properly served with a copy thereof. Georgia Fla. &c. R. Co. v. Lasseter, 122 Ga. 679 (1) (51 SE 15).
(b) Where, from the whole assignment of error, it appears that the use of the words "accept" and "accepted" for the words "except" and "excepted" was merely an ineptitude, they do not render the bill of exceptions subject to dismissal. MacIntyre v. Zac-Lac Paint &c. Co., 107 Ga. App. 807 (1) (131 SE2d 640).
2. If the rights of the parties have already accrued and the judgment sought is as to a disputed fact and would be determinative of the issues, rather than a construction of stated rights, status, and other relations, commonly expressed in written instruments, the case is not one for declaratory judgment. U. S. Fidelity &c. Co. v. Watson, 106 Ga. App. 748 (1) (128 SE2d 515); Gant v. State Farm Mut. Auto. Ins. Co., 109 Ga. App. 41 (1) (134 SE2d 886).
Plaintiffs Rinker, the lessors, brought an action for declaratory judgment against Hugh W. Sparks and Georgia Propane Gas & Appliance Company alleging a lease agreement from plaintiff to defendant Sparks by which they had leased to him certain land in Columbia County at a monthly rental of $100, to be paid in advance on the 5th day of every month during the term; that thereafter Georgia Propane Gas and Appliance Company, with the consent of Sparks, went into and was in possession at the time the action was brought; that the rental due January 5, 1964, was not paid and was still unpaid January 10, when plaintiffs made written demand for possession by letter properly addressed and posted, carrying sufficient postage for its delivery; that on the following day, January 11, defendants caused a sealed envelope to be delivered to plaintiffs containing a series of 12 checks dated consecutively on the 5th of each month from January 5, 1964, to December 5, 1964, each being for the amount of $100 and payable to plaintiffs; that the checks were returned to defendants by letter informing them that the lease was no longer in effect by reason of the default in payment of the rent due January 5th and that the demand for possession of the premises was renewed; that in response plaintiffs received a letter from defendants' counsel again tendering a check for $100, asserting that "this rent was paid before any demand was ever made for possession of the premises" and threatening to hold them for expense and damages incurred, etc., in connection with any dispossessory proceeding that might be instituted. Plaintiffs prayed for a declaration that the "defendants no longer have any rights to possession of the leased property under terms of the lease . . . that petitioners are entitled to immediate possession," and sought judgment against the defendants for double rent for the premises from January 5, 1964, until they should relinquish possession.
To the sustaining of a general demurrer to the petition plaintiffs except.
Defendants move to dismiss the writ of error on the grounds (a) that the copy of the bill of exceptions served on their counsel did not conform to the original in that there was a discrepancy in certain dates recited therein, and (b) that in assigning error plaintiffs asserted that they "accepted" to the sustaining of the demurrer at the time of the ruling and do here and now "accept" thereto.
1. Headnote 1 needs no amplification, but we suggest a reading of Weihofen, Word-Watching for Lawyers, 50 ABA Journal 663 (July 1964), and the references on the subject in MacIntyre v. Zac-Lac Paint &c. Co., 107 Ga. App. 807 (131 SE2d 640). The motion to dismiss the bill of exceptions is denied.
2. If one stands in need of relief from uncertainty and insecurity with respect to his rights, status and other legal relations, declaratory judgment is an appropriate remedy, for he then occupies a position similar to that referred to in Isaiah 59:9: "Therefore is judgment far from us, neither doth justice overtake us: we wait for light, but behold obscurity; for brightness, but we walk in darkness." The Supreme Court has held that "the declaratory judgment law permits one who is walking in the dark to turn on a light to ascertain where he is and where he is going . . . However, one walking in full daylight, who knows where he is going and is confident of the course he is pursuing, has no need either of artificial light or judicial advice." Venable v. Dallas, 212 Ga. 595 (94 SE2d 416).
The question sought to be resolved here is neither one of law nor of the construction of some ambiguous or obscure provision of the contract; it is purely one of fact, i.e., whether the rent was in default at the time demand was made by the lessors for possession of the premises. Obviously a resolution of that question would be determinative of the issues made by the petition here as well as those which would arise in a dispossessory proceeding, where the relief here sought is available. Under the facts alleged the rights of the parties have accrued. The sustaining of the general demurrer was proper.
Judgment affirmed. Bell, P. J., and Jordan, J., concur.
Randall Evans, Jr., contra.
Thurmond, Hester, Jolles & McElmurray, Thomas R. Burnside, Jr., for plaintiffs in error.
DECIDED JUNE 12, 1964.
Friday May 22 21:51 EDT

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