The present case is one falling within the jurisdiction of the Court of Appeals because none of the relief prayed for is of such character as to give this court jurisdiction under the Constitution of 1945.
(a) A prayer for a restraining order as provided for under the Declaratory Judgment Act, which is in effect only an application for a stay of proceedings until the rights in actual controversy can be declared and decreed, is not one for equitable relief within the meaning of our Constitution fixing the jurisdiction of this court.
No. 16269. JULY 15, 1948.
Milwaukee Mechanics' Insurance Company and Commercial
Casualty Insurance Company brought a suit for declaratory judgment against Davis, Morton and Hawkins. So far as material here the petition alleged: The plaintiffs issued to the defendant Davis their combination automobile liability insurance policy effective from March 5, 1946, to March 5, 1947. The automobile insured was a 1941 Oldsmobile. The policy contained a provision that, if the insured exchanged the automobile described therein for another, and notified the insurer of such exchange within thirty days from the date of its delivery to him, the insurance afforded by the policy would to that extent apply to the newly acquired automobile. The defendant Davis exchanged the Oldsmobile covered by the policy for a Cadillac automobile on July 16, 1946, but gave the plaintiffs no notice of the exchange prior to November 16, 1946. On the last-mentioned date, while operating the Cadillac automobile, the defendant Davis had an accident in which the defendants Morton and Hawkins were injured. The Cadillac was not covered by any policy of insurance issued by the plaintiffs to the defendant Davis. The defendants Morton and Hawkins filed separate suits for damages against Davis returnable to the January term, 1947, of Fulton County Superior Court. The defendant Davis forwarded to the plaintiffs the service copies thereof and called upon them to defend the suits, indemnify him against loss because of any judgments which might be obtained, and to pay certain bail expenses which he had incurred as a result of penal charges instituted against him because of the accident.
It was further alleged that the court should restrain the defendants Morton and Hawkins from further prosecution of their cases against Davis until the rights and liabilities between the plaintiffs and the defendant Davis could be determined and declared, and that no detriment would result to them (Morton and Hawkins) therefrom because their action, due to the present state of the court's calendar, would not be triable before March or April of 1947.
In substance, the prayers were: that it be declared and decreed that the contract of insurance previously existing between the plaintiffs and the defendant Davis terminated upon the date he (Davis) exchanged the automobile described in the policy for the Cadillac automobile involved in the accident; that it be
declared and decreed, since the law requires all contracts of insurance to be in writing, that the policy of insurance could be kept of force and extended to cover an automobile received in exchange for the one described in the policy only by a written endorsement signed by a duly authorized representative of the plaintiffs; that the defendants Morton and Hawkins be restrained from proceeding with the prosecution of their suits against Davis until the rights and liabilities of the plaintiffs and the defendant Davis are declared and decreed; and for general relief.
The trial of the case resulted in a verdict for the defendants. Error is assigned on a judgment overruling a motion for new trial and on exceptions pendente lite filed by the plaintiffs.
(After stating the foregoing facts). It is always our duty, with or without motion, to inquire into the jurisdiction of this court in all cases in which there may be any doubt as to the existence of such jurisdiction; and the present case is one calling for such inquiry. Dobbs v. Federal DepositIns. Corp., 187 Ga. 569" court="Ga." date_filed="1939-02-17" href="https://app.midpage.ai/document/dobbs-v-federal-deposit-insurance-5592109?utm_source=webapp" opinion_id="5592109">187 Ga. 569 (1 S.E.2d 672" court="Ga." date_filed="1939-02-17" href="https://app.midpage.ai/document/dobbs-v-federal-deposit-insurance-5592109?utm_source=webapp" opinion_id="5592109">1 S.E.2d 672); McDowell v.McDowell, 194 Ga. 88" court="Ga." date_filed="1942-05-28" href="https://app.midpage.ai/document/mcdowell-v-mcdowell-3399290?utm_source=webapp" opinion_id="3399290">194 Ga. 88 (20 S.E.2d 602" court="Ga." date_filed="1942-05-28" href="https://app.midpage.ai/document/mcdowell-v-mcdowell-3399290?utm_source=webapp" opinion_id="3399290">20 S.E.2d 602); Brockett v.Maxwell, 200 Ga. 213" court="Ga." date_filed="1946-01-09" href="https://app.midpage.ai/document/brockett-v-maxwell-3400540?utm_source=webapp" opinion_id="3400540">200 Ga. 213 (36 S.E.2d 638" court="Ga." date_filed="1946-01-09" href="https://app.midpage.ai/document/brockett-v-maxwell-3400540?utm_source=webapp" opinion_id="3400540">36 S.E.2d 638); Dade County v.State of Ga., 201 Ga. 241" court="Ga." date_filed="1946-09-05" href="https://app.midpage.ai/document/dade-county-v-state-of-georgia-3402331?utm_source=webapp" opinion_id="3402331">201 Ga. 241 (39 S.E.2d 473" court="Ga." date_filed="1946-09-05" href="https://app.midpage.ai/document/dade-county-v-state-of-georgia-3402331?utm_source=webapp" opinion_id="3402331">39 S.E.2d 473). When this case was orally argued we invited counsel for all the parties to submit briefs on the question of our jurisdiction of the writ of error, and that has been done. In the brief for the defendants in error, Morton and Hawkins, it is insisted that jurisdiction of the writ of error is in this court, since the suit is in effect a proceeding to cancel the insurance contract issued by the plaintiffs to the defendant Davis. We now dispose of that contention by holding that the allegations and prayers of the petition can not reasonably be construed as a proceeding for equitable relief by cancellation. No facts are alleged which would authorize such relief and there is no prayer for the same. It is also contended by all the parties that the petition seeks injunctive relief and that this court, for that reason, has jurisdiction. Art. 6, sec. 2, par. 4 of the Constitution of 1945 (Code, Ann., § 2-3704), gives this court jurisdiction "in all equity cases" and
"in all cases involving extraordinary remedies." In Felton v.Chandler, 201 Ga. 347" court="Ga." date_filed="1946-10-08" href="https://app.midpage.ai/document/felton-v-chandler-3400670?utm_source=webapp" opinion_id="3400670">201 Ga. 347 (39 S.E.2d 654" court="Ga." date_filed="1946-10-08" href="https://app.midpage.ai/document/felton-v-chandler-3400670?utm_source=webapp" opinion_id="3400670">39 S.E.2d 654) this court held that a proceeding brought under the Declaratory Judgment Act (Ga. L. 1945, p. 137) is not per se an equitable action; nor is it a proceeding involving an extraordinary remedy within the meaning of our Constitution. Admittedly, this court does not have jurisdiction of the present case in so far as it relates to a determination and declaration of the rights and liabilities between the plaintiffs and the defendant Davis, the parties in actual controversy. But as shown, it is insisted that jurisdiction of the writ of error is in this court because of the prayer for injunctive relief against the defendants Morton and Hawkins. As to these two defendants no other relief was sought. In so far as the actual controversy is concerned, they are nominal parties only. Section two of our Declaratory Judgment Act provides: "The court, in order to maintain the status pending the adjudication of the questions or to preserve equitable rights, may grant injunction and other interlocutory extraordinary relief, in substantially the manner and under the same rules as apply in equity cases." We do not think that this purely incidental and ancillary relief provided for by the act, for the purpose only of retaining the status quo of an existing controversy until there can be a determination and declaration of the rights and liabilities of the parties in controversy, is a provision for equitable relief as contemplated by the Constitution in defining the jurisdiction of this court. In the present case no permanent relief is sought by injunction against the defendants Morgan and Hawkins. In effect, the only relief sought against them is a stay of the suits filed by them against Davis until the rights and liabilities of the parties in actual controversy can be determined and declared. All the relief sought against them will immediately terminate upon a declaration of the rights and liabilities between the plaintiffs and the defendant Davis. We do not think that the allegations and prayers of the petition as they related to the defendants Morton and Hawkins changed the character of a purely legal cause of action into an equitable one so as to bring the case within the jurisdiction of this court; and therefore we hold that the Court of Appeals and not this court has jurisdiction of the writ of error. Accordingly the case is
Transferred to the Court of Appeals.
Duckworth, Presiding Justice, Atkinson, Wyatt, Head, andCandler, Justices, and Judge Graham concur. Jenkins, ChiefJustice, disqualified.