14 S.E.2d 568 | Ga. | 1941
Allegations of the plaintiff's petition being hypothetical, and not positive as to essential facts upon which relief was sought, the general demurrer was properly sustained.
The rules of equity which will be applied in cases where it is sought to enjoin construction of buildings merely contemplated or in the process of completion, on the theory that their use and operation would constitute a nuisance, have been frequently stated by this court. Instances of their application, where relief has been granted or denied as dependent upon whether or not the injuries complained of are speculative and the subject of mere apprehension, are found in the following cases: Pittard v.Summerour,
It would not be sound or safe to allow a rule of pleading so liberal as to permit indefiniteness and uncertainty in respect to the essential facts of a cause of action or defense. To obviate such indefiniteness those essential facts giving rise to the cause of action must be pleaded directly and positively; and although in certain instances a fact not within the personal knowledge of the complainant may be charged upon information and belief, it must nevertheless be charged as a fact. It is not sufficient to say merely that petitioner "is informed and believes." That the averment must actually be made was held inNance v. Daniel,
Judgment affirmed. All the Justices concur.