61 S.E.2d 160 | Ga. Ct. App. | 1950
CITY OF SUMMERVILLE
v.
SELLERS.
Court of Appeals of Georgia.
Wright, Rogers, Magruder & Hoyt, for plaintiff in error.
Parker, Clary & Kent, Jesse M. Sellers Jr., contra.
FELTON, J.
This is a petition for a declaratory judgment wherein the plaintiff requests an adjudication of his rights under an alleged contract with the defendant. The only question in the case is whether the defendant is liable to the plaintiff for a breach of contract. The action, under the decisions of the Supreme Court and this court, clearly does not lie because there is no reason why a simple action for breach of contract will not give full and complete relief. The mere existence of a controversy does not give rise to an action for a declaratory judgment. While likewise the mere existence of another remedy will not necessarily preclude the action, the petition in this case lacks the essential ingredient of an alleged necessity for an adjudication to guide and protect the plaintiff from uncertainty and insecurity with respect to future conduct. Mayor &c. of Athens v. Gerdine, 202 Ga. 197 (42 S. E. 2d, 567); Consolidated Quarries Corp. v. Davidson, 79 Ga. App. 248 (53 S. E. 2d, 231). The action must be dismissed without prejudice to any future action by the plaintiff for a breach of contract if he should desire to bring one.
The court erred in overruling the general demurrer to the petition.
Judgment reversed. Sutton, C. J., and Worrill, J., concur.
