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Lawskills.com Georgia Caselaw
KENT v. BARRETT OIL COMPANY, INC. et al.
21577.
Injunction. Chatham Superior Court. Before Judge Harrison.
ALMAND, Justice.
1. Where the plaintiff struck his prayer for declaratory relief to avoid having his petition dismissed as a result of the trial court's sustaining a demurrer which raised the question as to whether the declaratory-judgment procedure was the proper one under the facts stated in the petition, he thereby was estopped to deny the correctness of the ruling on the demurrer.
2. Where contentions of the plaintiff in error are not argued in this court either by brief or orally, they will be considered as abandoned.
The exception here is to an order sustaining demurrers to the amended petition, seeking legal and equitable relief, the effect of such orders being to dismiss Standard Oil Company as a party defendant and to dismiss the petition against Barrett Oil Company, Inc.
1. The petition as originally filed sought relief by way of a declaratory judgment to adjudicate the nights of the parties. A demurrer was filed which, among other things, raised the question as to whether the declaratory-judgment procedure was the proper one under the facts stated in the petition. In the plaintiff's final amendment to avoid having his petition dismissed, the prayer for a declaratory judgment was stricken. The plaintiff by amending his petition to meet the ruling of the trial court is now estopped to question the correctness thereof. The question as to whether declaratory judgment is the proper procedure is, therefore, moot since such prayer was stricken from the petition. See Glover v. Savannah, Fla. & W. Ry. Co., 107 Ga. 34 (3) (32 SE 876); Rivers v. Key, 189 Ga. 832 (1) (7 SE2d 732).
2. The plaintiff in error's brief was directed solely to the declaratory-judgment question and not to other questions presented by the rulings of the lower court. The other contentions not having been argued in this court either by brief or orally will be considered as abandoned. Wood v. Pool, 211 Ga. 789 (2) (89 SE2d 192).
Brannen, Clark & Hester, Connerat, Dunn, Hunter, Cubbedge & Houlihan, contra.
Aaron Kravitch, for plaintiff in error.
ARGUED MARCH 12, 1962 -- DECIDED APRIL 5, 1962.
Friday May 22 22:57 EDT


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