Dunn v. Campbell
134 S.E.2d 20
Ga.
1963
Check Treatment

DUNN v. CAMPBELL, Commissioner of Agriculture

22206

Supreme Court of Georgia

NOVEMBER 7, 1963

our search revealed one) where this court has approved a judgment sustaining a general demurrer in an action for infringement on a trade name where facts were alleged to show that the plaintiff‘s name had acquired a secondary meaning, and the allegations otherwise supported the cause of action. In

, as shown by the opinion in that case, the plaintiff failed to allege facts to show that its name had acquired a secondary meaning. The decisions of this court in
, and
, were not based upon the doctrine of secondary meaning. Secondary meaning was in issue in
, where there was a jury trial.

In the present case the petition alleges a cause of action and it was error to sustain the general demurrer.

Judgment reversed. All the Justices concur, except Mobley, J., who dissents.

Schreiber & Rozier, for plaintiff in error.

Eugene Cook, Attorney General, G. Hughel Harrison, Leroy C. Hobbs, Assistant Attorneys General, contra.

PER CURIAM. The second ground of general demurrer is that the petition does not set forth a valid cause of action for declaratory judgment. This court has held in full-bench cases: “While, under Ga. L. 1959, p. 236, amending the Declaratory Judgments Act (Ga. L. 1945, p. 137; Code Ann. § 110-1101 et seq.), by adding thereto Section 1(c), one is not precluded from obtaining relief by declaratory judgment merely because the complaining party has other adequate legal or equitable remedy or remedies, yet “The object of the declaratory judgment is to permit determination of a controversy before obligations are repudiated or rights are violated.’

, and cases there cited. And where, as here, the petition shows that the rights of the parties have already accrued and no facts or circumstances are alleged which show that an adjudication of the plaintiffs’ rights is necessary in order to relieve the plaintiffs from the risk of taking any future undirected action incident to their rights, which action without direction would jeopardize their interests, the petition fails to state a cause of action for declaratory judgment.”
;
. The present suit is a simple statutory action for the collection of an assessment instituted under and as provided by the Georgia Agricultural Commodities Promotion Act (Ga. L. 1961, pp. 301, 348, Section 20; Code Ann. § 5-2920). In the opinion of the court it falls squarely within the rule above stated and hence does not set forth cause for a declaratory judgment.

The trial judge erred in overruling the defendant‘s demurrer to the petition.

Judgment reversed. All the Justices concur, except Quillian, J., who dissents.

QUILLIAN, Justice, dissenting. The foregoing opinion does not express my views. I think the petition set forth a cause for declaratory judgment and was not subject to demurrer for any of the reasons assigned.