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Lawskills.com Georgia Caselaw
ULMER v. STATE HIGHWAY DEPARTMENT et al.
35214.
Declaratory judgment. Before Judge Lilly. Lowndes Superior Court. January 15, 1954.
NICHOLS, J.
A declaratory judgment will not be rendered to give an advisory opinion in regard to questions arising in a proceeding, pending in a court of competent jurisdiction, in which the same questions may be raised and determined.
The State Highway Department filed a statutory proceeding to condemn a right-of-way for highway purposes, under the provisions of Chapter 36-11 of the Code, as amended by the act of 1937 (Ga. L. 1937-38, Ex. Sess., pp. 251-254). After the appointment of assessors, but before they met to fix the value of the premises sought to be condemned, the County of Lowndes, acting through its Commissioners of Roads and Revenues, entered into a contract with the condemnee wherein it is recited that it is the legal duty of Lowndes County to pay for the lands condemned. It was agreed by the county and the condemnee that, in consideration of the moving of a residence and the relocation of certain water lines, the assessors should eliminate from their findings any consequential damages and consequential benefits, and should find only the value of the land taken. Thereafter the assessors met and, by an award approved by two of the three assessors, found the value of the land sought to be condemned to be $36,000. The State Highway Department filed an appeal from this award within the time provided by law.
Thereafter the condemnee filed a petition for a declaratory judgment against Lowndes County and the State Highway Department, in which the above facts are alleged. It was contended that the contract between Lowndes County and the condemnee converted the condemnation proceeding into an arbitration under Chapter 7-2 of the Code; that no legal right to appeal existed; and that "it would be inequitable and illegal and unjust" to permit the condemnation case "to proceed to a trial until her rights against Lowndes County under the aforesaid contract" are adjudicated and declaimed. She alleged that an actual controversy exists; that the ends of justice require a declaration of the restrictive rights of the parties; and that an injunction should be granted under the provisions of the Declaratory Judgments Act. She prayed that the defendants be enjoined from prosecuting the condemnation case on appeal; that the award of the assessors be made the judgment of the court; that the appeal be dismissed; and, if the preceding relief is not granted, that the court declare the rights of the parties.
The court sustained a general demurrer to the petition, and the exception is to that judgment. The case was transferred to this court by the Supreme Court. Ulmer v. State Highway Department, 210 Ga. 513 (81 S. E. 2d 514).
7-224, and the appeal dismissed on motion or plea. We make no ruling upon this question. The condemnee had the right to file any appropriate pleadings setting up her contentions in the pending case. Central Georgia Power Co. v. Cornwell, 139 Ga. 1 (3) (76 S. E. 387, Ann. Cas. 1914A, 880); City of Macon v. Ries, 179 Ga. 320, 326 (176 S. E. 21). Her remedy in that proceeding was adequate, and the courts will not take jurisdiction to render a declaratory judgment if the effect of such judgment is to give an advisory opinion concerning the law applicable to a case already pending in a court of competent jurisdiction. Shippen v. Folsom, 200 Ga. 58 (35 S. E. 2d 915); Darneil v. Tate, 206 Ga. 576, 581 (58 S. E. 2d 160). The petition for declaratory judgment was properly dismissed.
Judgment affirmed. Felton, C. J., and Quillian, J., concur.
A. J. Little, B. Lamar Tillman, C. Winton Adams, contra.
Bloch, Hall, Groover & Hawkins, R. G. Dickerson, for plaintiff in error.
DECIDED OCTOBER 14, 1954.
Saturday May 23 03:52 EDT


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