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Lawskills.com Georgia Caselaw
ATKINSON v. DRAKE et al., Executors.
19065.
DUCKWORTH, Chief Justice.
Injunction. Before Judge Pharr. Fulton Superior Court. June 3, 1955.
Where the only equitable relief sought was an injunction against the obstruction or closing of a private way after the obstruction had been placed therein, the petition was subject to general demurrer, since there was an available remedy at law under Code Ch.72-2. Haney v. Sheppard, 207 Ga. 158 (60 S. E. 2d 453). Hence the amendment thereto, alleging that the plaintiff had removed the obstructions and the defendant "threatens to reerect and unless restrained will rerect and . . . close the driveway," fails to breathe life into the lifeless petition no matter how good a cause of action the amended petition might now allege as to the alleged threats. See Code 33 81-1302, 81-1303. It follows that the court erred in overruling the general demurrer to the petition as amended.
Harold Sheats, contra.
Vester M. Ownby, for plaintiff in error.
SUBMITTED SEPTEMBER 16, 1955 -- DECIDED OCTOBER 11, 1955 -- REHEARING DENIED NOVEMBER 16, 1955.
Saturday May 23 02:46 EDT


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